State v. Baer

2019 UT App 15
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JACOB BAER ,
Appellant.
Opinion
No. 20170479-CA
Filed January 17, 2019
Fourth District Court, Fillmore Department
The Honorable Anthony L. Howell
No. 161700209
Nathan Phelps, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 	Late one summer night, eighteen-year-old Jacob Baer and
three other teenage boys entered a community swimming pool
after hours. One of the teenagers who worked as a lifeguard at
the pool (Lifeguard) used a key to let them in, and the group
went swimming. Afterward, unbeknownst to Lifeguard, Baer
took the pool’s small lockbox used to store the pool’s cash. When
Lifeguard later asked Baer about the missing lockbox, Baer told
him, “Tell the cops I wasn’t there.” With help from one of the
other teenagers, K.D., authorities eventually recovered the pool’s
bank deposit bag from a nearby reservoir—the same place where
Baer told a jailhouse informant that he had dumped the lockbox.

State v. Baer
20170479-CA 	2 	2019 UT App 15
¶2 	Baer now appeals his convictions for burglary, a third
degree felony, and theft of services, a class B misdemeanor.1 He
contends that he received constitutionally ineffective assistance
of 	counsel 	when 	his 	trial 	counsel 	failed 	to 	move 	for 	a
directed verdict and failed to object to the jury instructions. We
affirm.
ANALYSIS
¶3 	A criminal defendant shows that he has been deprived of
his right to the effective assistance of counsel if he demonstrates
both that his “counsel’s performance was deficient” and that
“the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). To show that his trial
counsel performed deficiently, a defendant must demonstrate
that “his counsel rendered a demonstrably deficient performance
that fell below an objective standard of reasonable professional
judgment.” State v. Robertson, 2018 UT App 91, ¶ 36, 427 P.3d 361
(quotation 	simplified). 	But 	“it 	is well 	settled 	that 	counsel’s
performance at trial is not deficient if counsel refrains from
making futile objections, motions, or requests.” State v. Burdick,
2014 UT App 34, ¶ 34, 320 P.3d 55 (quotation simplified). To
demonstrate prejudice, “[i]t is not enough for the defendant to
show that the errors had some conceivable effect on the outcome
of 	the 	proceeding.” 	Strickland, 	466 	U.S. 	at 	693. 	Rather, 	a
defendant “must show that there is a reasonable probability that,
but 	for 	counsel’s 	unprofessional 	errors, 	the 	result 	of 	the
proceeding would have been different. A reasonable probability
1. In connection with the underlying events in this case, Baer was
convicted of four other misdemeanor offenses, including theft,
destruction 	of 	property, 	tampering 	with 	evidence, 	and
contributing 	to 	the delinquency 	of 	a 	minor. 	Baer does not
challenge those convictions.

State v. Baer
20170479-CA 	3 	2019 UT App 15
is 	a 	probability 	sufficient 	to 	undermine 	confidence 	in 	the
outcome.” Id. at 694.
¶4 	“When a criminal defendant raises a claim of ineffective
assistance of counsel for the first time on appeal, there is no trial
court ruling to examine. We must therefore decide, as a matter of
law, 	whether 	[Baer] 	received 	constitutionally 	ineffective
assistance of counsel.” See State v. Burnett, 2018 UT App 80, ¶ 19,
427 P.3d 288 (citation omitted).
¶5 	On appeal, Baer raises two issues. First, he contends that
his trial counsel was ineffective for failing to seek a directed
verdict on the burglary and theft of services charges. Second, he
contends that his trial counsel was ineffective for failing to
ensure that the jury instructions properly stated the applicable
mental states for those two charges.
I. Sufficiency of the Evidence
¶6 	Baer contends that his trial counsel rendered ineffective
assistance of counsel by “failing to challenge the sufficiency of
the evidence” supporting the charges of burglary and theft of
services. He suggests that counsel should have sought to dismiss
those charges by moving for a directed verdict.2 We disagree.
2. Baer also briefly suggests that his trial counsel should have
filed a motion to arrest judgment before sentencing with respect
to the burglary conviction. When this court considers “whether
filing a motion to arrest judgment would have been futile, we
evaluate 	whether 	the 	evidence 	presented 	at 	trial 	was 	so
questionable that such a motion would have caused the trial
court to reverse the jury verdict.” State v. Wells, 2014 UT App 13,
¶ 7, 318 P.3d 1251. “The court may only reverse a jury verdict
when the evidence is sufficiently inconclusive or inherently
improbable such that reasonable minds must have entertained a
(continued…)

State v. Baer
20170479-CA 	4 	2019 UT App 15
¶7 	If the State presents no competent evidence from which
a reasonable jury could find the elements of the relevant crime,
then 	trial 	counsel 	should 	move 	for 	a 	directed 	verdict 	and
the 	failure 	to 	do 	so 	“would 	likely 	constitute 	deficient
performance.” State v. Burdick, 2014 UT App 34, ¶ 35, 320 P.3d 55
(quotation 	simplified). 	But 	“a 	directed 	verdict 	should 	not
be granted if, upon reviewing the evidence and all inferences
that can be reasonably drawn from it[,] some evidence exists
from which a reasonable jury could find that the elements of
the crime had been proved beyond a reasonable doubt.” Id.
(quotation 	simplified). 	Thus, 	if 	the 	State 	presents 	“some
evidence 	from 	which 	a 	reasonable 	jury 	could 	find” 	all
the elements, “trial counsel’s decision not to raise a futile motion
for a directed verdict would not be deficient performance.”
See id. (quotation simplified). In examining whether a motion
for directed verdict could have been granted, “we view the
evidence presented at trial in the light most favorable to the
State.” Id.
¶8 	With this standard in mind, we first consider whether a
directed verdict motion would have been futile on Baer’s charge
for burglary, and then we consider the same question with
regard to the charge for theft of services.
(…continued)
reasonable doubt that the defendant committed the crime for
which he or she was convicted.” Id. (quotation simplified). “As
we conduct [this] evaluation, we review the evidence and all
reasonable inferences that may fairly be drawn therefrom in the
light 	most 	favorable 	to 	the 	jury 	verdict.” 	Id. 	(quotation
simplified). 	Here, 	any 	effort 	to 	arrest 	judgment 	on 	Baer’s
burglary conviction would have been futile for the same reasons
that a motion for a directed verdict would have failed. See infra
¶¶ 12–14.

State v. Baer
20170479-CA 	5 	2019 UT App 15
¶9 	Regarding the burglary charge, Baer asserts that “the
State failed to show that [he] unlawfully entered the pool.” Baer
acknowledges Lifeguard’s testimony that Lifeguard “was not
authorized to go into the pool at night,” but Baer asserts that
“the State never elicited testimony suggesting that [Lifeguard]
explained 	to 	[Baer] 	and 	the 	other 	boys 	that 	he 	was 	not
authorized to admit the others to the pool after hours.” In Baer’s
view, there was no evidence “showing why [Baer] should know
that he was not authorized” to enter the pool after hours.
¶10 	As relevant here, Utah law defines burglary as when a
person “enters or remains unlawfully in a building or any
portion of a building with intent to commit . . . theft.” Utah Code
Ann. 	§ 	76-6-202(1)(b) 	(LexisNexis 	2017). 	Baer’s 	sufficiency
argument focuses solely on the element of entering or remaining
unlawfully. The Utah Code defines “enter or remain unlawfully”
to mean that
a person enters or remains in or on any premises
when: (a) at the time of the entry or remaining, the
premises or any portion of the premises are not
open 	to 	the 	public; 	and 	(b) 	the 	actor 	is 	not
otherwise licensed or privileged to enter or remain
on the premises or any portion of the premises.
Id. § 76-6-201(3). The undisputed evidence established that the
pool was closed at the time of Baer’s entry and thus was “not
open to the public.” See id. § 76-6-201(3)(a). Baer concedes that
“there is nothing to suggest that [his] entry was privileged” to
enter the premises, so the relevant question is whether sufficient
evidence showed that Baer was not “otherwise licensed . . . to
enter or remain on the [pool’s] premises.” See id. § 76-6-201(3)(b).
¶11 	The primary evidence against Baer about his entry to the
pool was provided by Lifeguard and K.D. Lifeguard testified
that, on the weekend night in question, he had possession of a
key to the pool so that he could open the pool at 5 a.m. the next

State v. Baer
20170479-CA 	6 	2019 UT App 15
Monday morning. According to Lifeguard, even though he was
not authorized to go into the pool at night, Lifeguard suggested
to 	K.D. 	and 	another 	teenager, 	G.S., 	that 	they 	go 	“night
swimming.” G.S. invited Baer to join them, and Baer met them
there. K.D. testified that Baer parked his car at the middle school
“right next door” to the pool. Lifeguard then used his key to
unlock the pool, and they all went swimming. Lifeguard testified
that they entered the pool at “about ten at night,” but the State
also introduced evidence that Lifeguard told the pool manager
that they had been there at about “2:00 in the morning.”
¶12 	Although Baer maintains that the evidence failed to show
“why [he] should know that he was not authorized” to enter the
pool after hours with a lifeguard who had a key, the State’s
evidence, and the reasonable inferences that can be drawn from
it, provided a sufficient basis for a reasonable jury to conclude
that Baer was not licensed or authorized to enter or remain at the
pool 	after 	hours 	and 	that 	Baer 	knew 	that 	he 	lacked 	such
authorization.
¶13 	Baer and the other teenagers entered the locked pool on a
weekend evening around 10 p.m. or later. Lifeguard—who was
merely 	a 	juvenile 	employee 	of 	the 	pool 	and 	not, 	say, 	a
manager—used 	his 	key 	to 	access 	the 	premises. 	Lifeguard
testified that he had the key for the purpose of opening the pool
Monday morning and was not authorized to go into the pool at
night. Relying on logic and reasonable human experience, a jury
could 	reasonably 	infer 	from 	these 	facts 	that 	this 	group 	of
teenagers, out late on a weekend, was not allowed to access the
closed pool and that Lifeguard did not have authority to take his
friends “night swimming.” See generally State v. Cristobal, 2014
UT App 55, ¶ 4, 322 P.3d 1170 (“A reasonable inference is a
conclusion that can be drawn from the evidence and is based on
logic and reasonable human experience.”). Even though Baer
claims that he did not actually know that Lifeguard lacked
authority to open the pool to him, no evidence suggested that

State v. Baer
20170479-CA 	7 	2019 UT App 15
Baer had reason to believe that Lifeguard was allowed to treat
his friends to an after-hours swim.3 Yet other evidence supports
the reasonable inference that Baer knew that his entry to the pool
was unlawful. Before entering the premises, Baer parked his car
next door at the middle school. One reasonable inference from
that fact is that Baer was seeking to avoid detection and knew
that the group was sneaking into a pool that was off-limits. Cf.
Salt Lake City v. Carrera, 2015 UT 73, ¶ 11, 358 P.3d 1067
(“Circumstantial evidence is particularly useful in establishing
intent because direct evidence of intent is rarely available. We
allow juries to rely on circumstantial evidence to find intent on
the basis of reasonable inferences drawn from the evidence.”).
¶14 	Thus, contrary to Baer’s assertions, the State did provide
some evidence from which a reasonable jury could find that Baer
“unlawfully entered the pool” and that “[Baer] should know that
he was not authorized” to enter the pool. As a result, the trial
court would not have granted a motion for a directed verdict on
the burglary charge, and trial counsel therefore did not render
ineffective assistance in failing to raise a futile motion. See
Burdick, 2014 UT App 34, ¶ 34; see also State v. Johnson, 2015 UT
App 312, ¶ 16, 365 P.3d 730.
¶15 	Regarding the theft of services charge, Baer makes a
similar argument. He first explains that the “service [he] is
accused of stealing is use of the swimming pool.” Then he
asserts that “the State failed to produce evidence showing that
[Baer] did know that accepting [Lifeguard’s] invitation to swim
3. Baer might have reasonably believed that he was allowed to
be on the premises that night if there had been evidence that, for
example, Lifeguard told Baer that employees and their guests
were permitted to use the pool’s facilities after hours. But the
only evidence in the case was the State’s; Baer did not call any
witnesses.

State v. Baer
20170479-CA 	8 	2019 UT App 15
was not proper” or that Lifeguard “was not permitted to open
the pool to his friends,” because no evidence showed that “the
fee couldn’t be waived or that employees weren’t allowed to
bring friends in without cost.”
¶16 	Under Utah law, “[a] person commits theft if he obtains
services which he knows are available only for compensation by
deception, threat, force, or any other means designed to avoid
the due payment for them.”4 Utah Code Ann. § 76-6-409(1)
(LexisNexis 2017). The same facts that support a finding that
Baer entered the pool unlawfully also support the reasonable
inference 	that 	Baer 	knew 	that 	swimming 	in 	the 	pool 	was
available only for a fee. Supra ¶ 13. Again, contrary to Baer’s
assertions, the State submitted some evidence that could support
a 	finding 	that 	Baer 	did 	know 	that 	accepting 	Lifeguard’s
invitation to swim when the pool was closed to the public “was
not proper.”
¶17 	In sum, if trial counsel had moved for a directed verdict
on the burglary or theft of services charges, those efforts would
have been futile. Baer’s ineffective assistance claims in this
regard fail. See Burdick, 2014 UT App 34, ¶ 34.
II. The Jury Instructions
¶18 	Baer next contends that his trial counsel was ineffective
for failing to demand that the jury be properly instructed on the
4. “In this section ‘services’ includes, but is not limited to, labor,
professional service, public utility and transportation services,
restaurant, hotel, motel, tourist cabin, rooming house, and like
accommodations, the supplying of equipment, tools, vehicles, or
trailers for temporary use, telephone or telegraph service, steam,
admission 	to 	entertainment, 	exhibitions, 	sporting 	events, 	or
other events for which a charge is made.” Utah Code Ann.
§ 76-6-409(3) (LexisNexis 2017).

State v. Baer
20170479-CA 	9 	2019 UT App 15
applicable mental states for burglary and theft of services. We
conclude that Baer has not carried his burden of persuasion and
that his ineffective assistance claims in connection with the two
instructions therefore fail.
¶19 	The 	Utah 	Rules 	of 	Appellate 	Procedure 	require 	an
appellant’s brief to “explain, with reasoned analysis supported
by citations to legal authority and the record, why the party
should prevail on appeal.” Utah R. App. P. 24(a)(8). “Briefs must
contain reasoned analysis based upon relevant legal authority.
An issue is inadequately briefed when the overall analysis of the
issue 	is so 	lacking 	as to 	shift 	the 	burden 	of 	research 	and
argument to the reviewing court.” State v. Davie, 2011 UT App
380, ¶ 16, 264 P.3d 770 (quotation simplified). And “an appellant
that fails to devote adequate attention to an issue is almost
certainly going to fail to meet [his] burden of persuasion.” State
v. 	Ogden, 	2018 	UT 	8, 	¶ 	24 	n.3, 	416 	P.3d 	1132 	(quotation
simplified).
¶20 	With 	respect 	to 	both 	jury 	instructions, 	Baer 	has 	not
carried his burden to show that counsel performed deficiently
and that he was prejudiced by counsel’s alleged errors. Although
Baer asserts that his counsel performed deficiently by failing to
ensure the instructions properly explained the applicable mental
states and asserts that the instructions were inadequate, he does
not identify or discuss the offending instructions and fails to
make a cogent argument about what should have been done to
make them passable. As a result, Baer’s terse briefing on the
adequacy of the jury instructions and his counsel’s performance
effectively “shift[s] the burden of research and argument” to this
court. See Davie, 2011 UT App 380, ¶ 16 (quotation simplified).
Likewise, Baer has not devoted adequate attention to showing
how, given the facts of this case, there is a reasonable probability
that, but for counsel’s failure to object to the instructions, the
outcome would have been different. Baer therefore has not

State v. Baer
20170479-CA 	10 	2019 UT App 15
demonstrated ineffective assistance of counsel related to the jury
instructions.
CONCLUSION
¶21 	We conclude that, because the State introduced sufficient
evidence of burglary and theft of services, Baer’s trial counsel
did not perform ineffectively by failing to move for a futile
directed verdict on those charges. We further conclude that,
because Baer has not carried his burden of persuasion, he cannot
prevail on his ineffective assistance of counsel claims regarding
his 	counsel’s 	failure 	to 	object 	to 	the 	jury 	instructions.
Accordingly, we affirm.