In re V.L.V.-G.

2015 UT App 247

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF V.L.V.-G.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

V.L.V.-G.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Memorandum Decision
No. 20140218-CA
Filed October 1, 2015

Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 174714

Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes, Lindsey L. Wheeler, and Laura B.
Dupaix, Attorneys for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and JOHN A. PEARCE concurred.

TOOMEY, Judge:

¶1 V.L.V.-G. (L.G.), a minor, challenges the juvenile court’s
adjudication order, finding him guilty of four counts of graffiti—
offenses that would be two third-degree felonies and two class A
misdemeanors if committed by an adult. He does not deny spray
painting the graffiti, but argues the juvenile court erred in
adjudicating him guilty of enhanced graffiti allegations “because
the only evidence related to the monetary value of the damages
came in the form of inadmissible evidence.” He also argues his
In re V.L.V.-G.

counsel was ineffective for failing to object on this basis. He asks
this court to reverse the juvenile court’s order and remand for a
new trial or, in the alternative, for the juvenile court to reduce
each count to a class B misdemeanor. We affirm.

¶2 In 2013, two Provo City police officers noticed that
someone had spray painted graffiti on objects throughout the
city, including traffic barricades, traffic signs, community
mailboxes, and a door at the Utah Convention Center. L.G. was
later charged with four counts of graffiti—three third degree
felony counts (damages exceeded $1,000) and one class A
misdemeanor count (damages were between $300 and $1,000). 1
See Utah Code Ann. § 76-6-107(2)(b), (c) (LexisNexis 2012).

¶3 At the bench trial, only the two police officers and L.G.
testified concerning the graffiti. 2 Officer Daniel Smith testified
that he recognized the graffiti—variations of the word “Krag”—
as the same tag 3 L.G. had previously “admitted to doing.” He
testified that when he questioned L.G., L.G. initially denied
painting the graffiti, but after telling L.G. that he recognized the
tag as the “same exact ones that [L.G.] admitted to” before, L.G.
became upset and “nodded his head up and down in a yes
fashion.”

1. L.G. was also charged and convicted of at least one other
unrelated charge, but the other charges are not relevant to our
analysis and are not at issue here.

2. A court clerk was also sworn in for the limited purpose of
introducing documents into the record.

3. A “tag” is “a graffito in the form of an identifying name or
symbol.” Merriam-Webster Dictionary, http://www.merriam-
webster.com/dictionary/tag (last visited Sept. 14, 2015). “Tagging”
is the act of making the graffito“to provide or mark with or as if
with a tag.” Id.

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¶4 Officer Smith also testified that in investigating the
graffiti, he photographed and documented the damage, then
telephoned the victims to inform them that their property had
been damaged. Based on their experiences in remedying graffiti
damage, without personally seeing the graffiti, the victims gave
Officer Smith an estimated amount for the costs of clean-up or
replacement of the damaged items. For the damages to thirty-six
barricades, Officer Smith testified that Barricade Services told
him the damages were approximately “$750.00 . . . for the large
traffic cones and $930.00 in damages for the smaller ones.” He
testified that Provo City estimated damage to ten traffic signs
was “valued at $1,500.00” and that the United States Postal
Service valued the damages to three mailboxes at $500.00 each. 4

¶5 Although L.G. admitted that he had previously been
charged and found guilty of tagging “Krag,” L.G. denied ever
tagging it, instead suggesting someone else did. In closing
arguments, L.G.’s trial counsel reiterated that L.G. did not
commit the offense and that someone else was responsible for
the graffiti.

¶6 The juvenile court found “beyond a reasonable doubt”
that the evidence demonstrated L.G. painted the graffiti, and the
judge stated, “I found the Officers’ testimony to be credible.
They were corroborating. There’s no reason for them to misstate
what they had said. There was documentation of what they were
saying.” The court adjudicated L.G. guilty on all counts but
reduced one third degree felony charge to a class A

4. The value of the damage to the convention center’s door is
unclear from the record. Both times the officer was asked about
the door, the prosecutor and trial counsel either interrupted him
or moved on without asking about the amount.

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misdemeanor based on Officer Smith’s estimated damages
testimony. 5 L.G. appeals.

¶7 To adjudicate L.G. guilty of graffiti, the State had to prove
that he was responsible for the graffiti and then, to establish the
level of the offense, the State had to prove an approximate value
of the damage. 6 See, e.g., Utah Code Ann. § 76-6-107(2)(b)
(LexisNexis 2012) (providing that graffiti is a third degree felony
if the damages exceed $1,000); id. § 76-6-107(2)(c) (providing that
graffiti is a class A misdemeanor if the damages are between
$300 to $1,000). Here, to establish the estimated damages caused
by the graffiti the State relied on Officer Smith’s testimony
regarding his conversations with the victims. For purposes of
our analysis, we assume, without deciding, Officer Smith’s
testimony regarding the amount of damages was inadmissible
hearsay. See Utah R. Evid. 801(c), 802.

¶8 L.G. asserts trial counsel violated his constitutional right
to effective assistance and deprived him of his right to
confrontation by not objecting to Officer Smith’s hearsay
testimony. 7 Specifically, L.G. argues trial counsel had no

5. L.G. was ordered to complete community service and to pay
restitution. He was also placed in the temporary custody of the
Division of Juvenile Justice Services to be placed in detention for
up to thirty days before being placed with a juvenile work camp
to help work off service hours and restitution.

6. The precise amount of removal costs, repair costs, or
replacement costs is relevant only upon conviction or
adjudication when the court must order restitution to the victims
in the amount of such costs. See Utah Code Ann. § 76-6-107(4)
(LexisNexis 2012).

7. To the extent L.G. argues his Sixth Amendment right “to be
confronted with the witnesses against him” was violated, see U.S.
(continued…)

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reasonable basis for not objecting to the officer’s testimony and
had not properly “investigated the law [or] the facts related to
[the] victim witnesses.” He suggests that trial counsel was
simply unprepared and “missed the opportunity to exclude the
evidence altogether.” L.G. also argues the court plainly erred by
admitting the hearsay testimony into evidence. 8

¶9 To demonstrate that trial counsel provided
constitutionally ineffective assistance, L.G. must show “both
‘that counsel’s performance was deficient’ and ‘that the deficient
performance prejudiced the defense.’” Layton City v. Carr, 2014
UT App 227, ¶ 12, 336 P.3d 587 (quoting Strickland v. Washington,
466 U.S. 668, 687 (1984)). “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

(…continued)
Const. amend VI, L.G. cannot establish his ineffective-assistance-
of-counsel and plain-error claims if there was a conceivable
strategy for L.G.’s trial counsel not objecting to Officer Smith’s
hearsay testimony. See infra ¶¶ 14–17.

8. In his appellate briefs, L.G. often frames this as a challenge to
the sufficiency of the evidence. But based on the substance of his
analysis, we read this argument as a challenge to the evidence
based on its admissibility. In essence, L.G. argues that because
Officer Smith’s testimony was inadmissible hearsay evidence,
the court could not consider it in adjudicating him and,
therefore, without the officer’s testimony regarding damages,
there was insufficient evidence. But as discussed below, because
we conclude that the court was not required to second-guess the
admissibility of Officer Smith’s testimony, the court properly
considered it. See infra ¶¶ 16–17.

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a matter of law.” Id. ¶ 6 (alteration in original) (citation and
internal quotation marks omitted).

¶10 L.G. first argues “counsel’s performance was deficient
because he failed to object to evidence in violation of the rules
prohibiting hearsay and L.G.’s right to confront the witnesses
against him.” We disagree. To demonstrate that his counsel’s
representation was deficient, he must overcome the strong
presumption that “under the circumstances, the challenged
action might be considered sound trial strategy” including the
presumption that “counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689
(citation and internal quotation marks omitted). “Judicial
scrutiny of counsel’s performance must be highly deferential. . . .
A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.” Id. In other words, counsel’s performance will not be
deemed deficient unless L.G. can “‘show that counsel’s
representation fell below an objective standard of
reasonableness.’” Carr, 2014 UT App 227, ¶ 12 (quoting
Strickland, 466 U.S. at 688).

¶11 Reconstructing the circumstances as Strickland requires, it
is apparent from the record that trial counsel’s primary strategy
was to attack the quality of the State’s evidence in an effort to
convince the court that L.G. was not responsible for the graffiti.
Counsel theorized that some other person did it and suggested
that, without a witness, no convincing evidence proves L.G. was
responsible for it. Counsel presented L.G.’s own denial
testimony to support the theory that someone else made the
graffiti. But he also challenged the sufficiency of the evidence by
indicating that Officer Smith never heard L.G. admit to tagging
“Krag.” Instead, as counsel pointed out, that the officer only
heard L.G. admitted to the previous “Krag” tags through

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“hearsay from someone else” and that L.G.’s admission in this
case was based primarily on a head nod.

¶12 Counsel also attacked the quality of Officer Smith’s
testimony regarding the amount of damages by cross-examining
him with a series of questions to help demonstrate that his
testimony was flawed. In response to counsel’s questioning,
Officer Smith admitted that none of the victims actually saw the
damage before giving him an estimated cost for clean-up or for
replacement. The officer also admitted that he did not know
whether the victims’ reported amounts were the costs of
replacement or clean-up. Based on Officer Smith’s testimony,
counsel suggested that the estimated damage amounts “don’t
really mean anything” regarding restitution.

¶13 L.G. contends that there is “no reasonable basis to support
trial counsel’s failure to object [to the hearsay testimony] as a
sound trial strategy.” He argues there was “no risk that bringing
the unconstitutional nature of the statements to the attention of
the judge would have a negative effect upon his judgment.”
Rather, L.G. asserts, counsel simply “did not prepare and his
failure to object demonstrated that lack of preparation.” We are
not persuaded.

¶14 Evaluating the conduct from counsel’s perspective, the
decision not to seek to exclude Officer Smith’s hearsay testimony
appears to be a sound trial strategy. First, if counsel had directly
attacked the amount of the damage he risked forcing the State to
call the victims to testify to the precise amount of
damagewhich could have been much more than the estimates.
The estimated damage amounts, as counsel suggested, do not
“really mean anything as far as restitution,” but are used to
demonstrate the level of offense. Consequently, had counsel
objected to Officer Smith’s testimony concerning the damage
amounts and had the victims testified to higher amounts, L.G.
could have been held responsible for more serious offenses.

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¶15 Second, in line with this defense strategy, counsel might
well have thought the more effective way of undermining the
evidence was to challenge the validity of Officer Smith’s
statement by portraying him as someone who was unreliable.
There was little chance of keeping evidence of the amount of
damage out of trial, and challenging Officer Smith’s testimony
regarding the amount of damage would likely be more feasible
than refuting the victims’ statements. Moreover, the victims’
evidence supporting the amount of damages, including receipts
and other invoices, would expectedly prove more difficult to
challenge than Officer Smith’s less reliable recollection of his
out-of-court conversations.

¶16 Accordingly, we conclude that the decision not to seek
exclusion of Officer Smith’s damages testimony may well have
been part of a sound trial strategy and thus did not fall below an
objective standard of reasonableness. With the benefit of
hindsight, the availability of other defense strategies may be
clear, but “[w]henever there is a legitimate exercise of
professional judgment in the choice of trial strategy, the fact that
it did not produce the expected result does not constitute
ineffectiveness of counsel.” State v. Bullock, 791 P.2d 155, 160
(Utah 1989).

¶17 Because trial counsel’s failure to object to Officer Smith’s
damages testimony did not amount to ineffective assistance of
counsel and was the result of a conscious strategy to attack the
quality of the State’s evidence, we do not address L.G.’s plain-
error argument. Courts are “not required to constantly survey or
second-guess [a] nonobjecting party’s best interests or trial
strategy.” See State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697
(alteration in original) (citation and internal quotation marks
omitted); see id. (providing that only where an error serves “no
conceivable strategic purpose” should courts intervene in
counsel’s trial strategy (citation and internal quotation marks
omitted)). By not objecting to Officer Smith’s damages

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testimony, “the trial judge [was] put in the untenable position of
deciding whether to intervene and potentially interfere with trial
counsel’s strategy or face review for plain error.” State v. Morgan,
813 P.2d 1207, 1211 (Utah Ct. App. 1991) (citation and internal
quotation marks omitted). Furthermore, allowing L.G. to now
claim that Officer Smith’s damages testimony should not have
been admitted “would permit him to present one strategy, lose,
and then start over with a whole new strategy.” Id. (citation and
internal quotation omitted). As the Utah Supreme Court has
explained,

If trial counsel were permitted to forego objecting
to evidence as part of a trial strategy that counsel
thinks will enhance the defendant’s chances of
acquittal and then, if that strategy fails, were
permitted to claim on appeal that the [reviewing
court] should reverse because it was plain error for
the court to admit the evidence, we would be
sanctioning a procedure that fosters invited error.
Defendants are thus not entitled to both the benefit
of not objecting at trial and the benefit of objecting
on appeal.

Bullock, 791 P.2d at 159 (footnotes omitted); see also State v. Hall,
946 P.2d 712, 716 (Utah Ct. App. 1997) (declining to consider an
appellant’s plain-error arguments when “the alleged errors
reasonably resulted from defense counsel’s ‘conscious decision
to refrain from objecting’” (quoting Bullock, 791 P.2d at 158–59));
Morgan, 813 P.2d at 1211 (same). Accordingly, if we were to
conduct a plain-error review of the court’s decision not to
intervene in counsel’s trial strategy, we “would be sanctioning a
procedure that fosters invited error.” See Bullock, 791 P.2d at 159.

¶18 In sum, when viewed in light of the presumption of
competence, we conclude counsel’s decision not to object to
Officer Smith’s testimony concerning damages was based on a

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conscious strategy to attack the quality of the State’s evidence
and thus did not fall “outside the wide range of professionally
competent assistance.” See Strickland v. Washington, 466 U.S. 668,
690 (1984). Because L.G. has not demonstrated that counsel’s
performance was deficient, we need not address his argument
that counsel’s representation prejudiced his defense. Moreover,
because counsel did not seek to exclude Officer Smith’s hearsay
testimony as part of his trial strategy, we decline to resolve
L.G.’s plain-error claims. We therefore affirm.

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