State of Utah v. Chadley Keith Calvert

¶1 Chadley Keith Calvert appeals his convictions for aggravated assault, a third degree felony, and for threatening with or using a dangerous weapon in a fight or quarrel, a class A misdemeanor. Calvert contends that his trial counsel provided constitutionally ineffective assistance in failing to raise arguments related to double jeopardy and that the trial court exceeded its discretion in admitting evidence of a prior bad act. He also argues that his trial counsel was ineffective in failing to object to the jury’s access to a state-owned laptop for the purpose of viewing an exhibit and that counsel’s failure was structural error. We affirm.

State v. Calvert

20150213-CA 2 2017 UT App 212

BACKGROUND1

¶2 After an altercation in front of his house in July 2012,

during which Calvert threatened neighbors with a gun, Calvert

was charged with third degree aggravated assault and with

threatening with or using a dangerous weapon in a fight or

quarrel. Before trial, the State filed a motion in limine seeking to

admit evidence of two prior incidents during which Calvert

allegedly threatened neighbors with the use of deadly force. The

State argued that the admission of evidence of Calvert’s prior

acts was warranted to show the absence of accident or mistake

and to rebut Calvert’s claims of fabrication and self-defense. The

trial court refused to admit the older of the two incidents but,

over Calvert’s objection, ruled that evidence of the more recent

2008 incident (the Holladay incident) could be admitted for the

purpose of rebutting Calvert’s claims of fabrication and selfdefense.

¶3 At trial, the State offered testimony from several

witnesses to the July 2012 altercation. Several minors recounted

that on that evening they and their families attended a party a

few houses away from Calvert’s house. As this group of minors

passed by Calvert’s property, Calvert stepped out onto his front

porch and yelled profanities at them, telling them to stay away

from his yard. The oldest minor, A.H., approached Calvert and

told him “not to talk to [the children] like that.” Calvert then

“exchanged words” with A.H., yelling that the minors needed to

stay away from his property and threatening to “kick [A.H.’s]

ass.” A.H. then said that he was going to get his parents and

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. Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863 (citation

omitted).

State v. Calvert

20150213-CA 3 2017 UT App 212

quickly returned to the party. One of the minors testified that

Calvert “pulled out a gun or something like that” during this

argument.

¶4 Several adults testified that A.H. and other minors told

the adults at the party that a man was screaming and swearing

at them. A.H.’s uncle (Uncle) immediately went to check on the

children and stood on the sidewalk in front of Calvert’s house.

Calvert was at his front door and had a gun in his hand. The gun

had a laser sight that emitted a “red light.” When Uncle asked

Calvert what happened, Calvert told him to leave and pointed

the gun at Uncle’s chest for “probably 30 seconds.” “[S]everal

times,” Calvert “put the laser on” Uncle and “took it away.” Two

other adults from the party arrived at the scene and both saw

Calvert holding a gun. After they urged Uncle to go home,

Calvert threatened that he would “bring out [his] dogs so [they]

could have a conversation dog-to-dog.” Calvert also told them to

leave his property or “things were going to get bad.” A.H. called

911. Shortly before the police arrived, Calvert ran and put his

gun in his garage.

¶5 A responding officer (Officer) who interviewed Calvert

that night testified that Calvert reported that he had had an

altercation with the neighbors and that “some kids were hanging

. . . on [his] tree.” Calvert pointed out the tree, but Officer “didn’t

see any broken branches,” only “a few leaves on the ground.”

When Officer asked Calvert about a gun, Calvert responded that

he had been “sitting on his steps with just the laser pointer” and

that he had pointed the laser at the ground. Calvert said that he

had a gun in an upstairs bedroom and agreed to show it to

Officer. The gun was a Smith & Wesson Sigma that was loaded

and stored in a neoprene holster. The Sigma did not have a laser

sight and did not match the witnesses’ descriptions of Calvert’s

gun. Calvert told Officer that, during the altercation, he did not

have time to come inside to retrieve the gun but that he called

his neighbor.

State v. Calvert

20150213-CA 4 2017 UT App 212

¶6 Officer testified that, once back outside, he informed

Calvert that the neighbors reported that Calvert put the gun in

the garage. Calvert denied that report and, despite having said

he did not have time to get the Sigma from the upstairs

bedroom, stated that “it was the Sigma that he had.” When

Officer asked Calvert for permission to search the closed garage

to verify his statement that he did not place a gun there, Calvert

eventually consented to a search and admitted that there was “a

Glock in the . . . garage with a laser sight on it.” Another officer

searched the garage and secured the Glock. Officer did not

observe any other laser pointers on the property.

¶7 Calvert’s former neighbor (Former Neighbor) also

testified about the Holladay incident, which had been the subject

of the State’s motion in limine. She testified that in 2008, she and

Calvert lived in the same duplex in Holladay, Utah. On

Halloween, she had had an altercation with Calvert. She was at

home when a friend reported seeing someone outside taking

pictures and hiding behind Former Neighbor’s car. According to

Former Neighbor, when she walked outside to investigate,

Calvert grabbed and pushed her. She fell, and when she

attempted to stand up, he pushed her down again, calling her

names and swearing at her. He also threatened to “kill [her] or

something,” and then sped away in his truck. On crossexamination,

Former Neighbor explained that, after the

altercation, she and Calvert each brought charges against the

other and that all charges were ultimately dropped.

¶8 In his defense, Calvert elicited testimony from his

neighbor, B.M., who lived across the street. B.M. testified that

Calvert called him on the night of the July 2012 altercation and

told him, “[Y]ou might need to come out here, there might be a

situation.” According to B.M., he went outside and saw Calvert

talking to a man on the sidewalk near Calvert’s driveway. B.M.

heard the man near the driveway say to Calvert, “Why don’t you

come over here, homes.” B.M. observed a “red light” that

“looked like a laser,” and although he “couldn’t tell” if there was

State v. Calvert

20150213-CA 5 2017 UT App 212

a gun, he could see what looked like a “red dot” from a laser

“dancing around . . . on the ground.” B.M. called the police.

¶9 Calvert also testified in his defense. He stated that when

his dogs barked and woke him up that evening, he observed “a

bunch of children just causing all sorts of ruckus in [his] front

yard.” He claimed that one child was hanging on his tree and

causing it to scratch his vehicle. Calvert told the children to “get

out of [his] tree,” and they “started yelling” at him. Calvert and

one minor exchanged profanities.

¶10 According to Calvert, after the group went on its way, he

“grabbed a flashlight,” checked his property, and discovered a

broken sprinkler. He fixed the sprinkler and then brought food

out on the porch. As Calvert was eating, he “heard a scuffle

behind [him], turned around,” and saw someone “trying to

reach through [the] railing [to] grab [him].” Calvert “jumped

up,” opened his front door, and the alarms for his house and

garage went off.

¶11 Believing that someone had triggered the garage alarm by

entering the garage, Calvert called B.M. for help and retrieved a

gun from his upstairs bedroom. When he opened the garage

door to investigate, he saw a man standing inside. Calvert

pointed the gun, with the laser on, at the man’s head and

instructed him to get off his property. According to Calvert, the

man put his hands up and backed out of the garage. Once the

man was halfway down the driveway, Calvert secured his gun

in his paddle holster. From the threshold of his garage, Calvert

saw another man in the darkness to his left side and a third man

standing to his right side under his tree. Calvert could also see

B.M. across the street using his phone. B.M. then talked with the

strangers, and although B.M. and Calvert told the men to leave

Calvert’s property, the man in the driveway would not leave.

When the police arrived, Calvert removed his gun from the

paddle holster and set them both on the four-wheeler in his

garage.

State v. Calvert

20150213-CA 6 2017 UT App 212

¶12 After the defense rested, the State recalled Officer, who

then testified that, during their interactions, Calvert did not

mention someone grabbing him through the railing on his porch

or that someone had been in his garage. Officer also testified that

the only holster he saw on Calvert’s premises was the holster in

Calvert’s bedroom that held the Sigma.

¶13 Before submitting the case to the jury, the court instructed

that if the jury considered Former Neighbor’s testimony, it could

do so “for the limited purposes of: considering defendant’s

fabrication and self-defense claim in the current case.” The court

further cautioned that the evidence regarding the Holladay

incident was “[neither] admitted to prove a character trait of the

defendant nor to show that the defendant has a propensity to act

in a certain way.” The court reminded the jury that Calvert was

on trial for only the charged crimes in the present case and

warned that the jury could not convict Calvert based on the

belief that Calvert might have committed another act at “some

other time.”

¶14 The court also instructed that to find Calvert guilty of

aggravated assault, the jury was required to find beyond a

reasonable doubt the following elements: “1. That . . . Calvert

committed an act of assault upon [Uncle]; and 2. That such

attempt or act was committed intentionally or knowingly; and 3.

That [Calvert] used a dangerous weapon.” For the jury to find

Calvert guilty of threatening with or using a dangerous weapon

in a fight or quarrel, the jury had to find beyond a reasonable

doubt these elements: “1. That . . . Calvert was in the presence of

two or more people; and 2. Drew or exhibited any dangerous

weapon, to wit: a handgun; and 3. (a) Did so in an angry or

threatening manner, or (b) unlawfully used the same in any fight

or quarrel.” Additionally, the court provided instructions

regarding self-defense and defense of habitation.

¶15 As the trial court and counsel collected the exhibits to

send back with the jury for deliberations, the court noted that

State v. Calvert

20150213-CA 7 2017 UT App 212

State’s Exhibit 2 was a CD, which contained the recording of

A.H.’s 911 call. The prosecutor volunteered that he had “a laptop

. . . if [the jurors] need it.” The court responded, “Very good.

We’ll let them listen to that . . . .” Defense counsel did not object.

¶16 The jury found Calvert guilty of both aggravated assault

and threatening with a dangerous weapon. Calvert subsequently

filed a motion to arrest judgment, in which he asserted that “the

prosecutor’s computer laptop was taken back to the jury room

during deliberations, and remained in the jury room throughout

the jury’s deliberations,” and that good cause therefore existed to

arrest judgment. He asserted that the verdict was “incurabl[y]

taint[ed]” because “[t]here is no way to ever know for certain

whether the juror[s] used the computer, accessed government

files on the computer, learned of other evidence, or

communicated with outside parties.” In opposition, the State

asserted that the laptop “contain[ed] no information related to

the case” and that, because it “was a tool to review admitted

evidence,” it did not taint the verdict. The trial court judge

agreed with the State, explaining, “[T]he laptop was controlled,

it was only for the playing of the 9-1-1 call and I don’t see that it

caused any taint at all.” Calvert appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Calvert advances three main contentions on appeal. First,

Calvert contends that his trial counsel rendered constitutionally

ineffective assistance by failing to raise arguments arising out of

double jeopardy concerns. “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 (alteration in original) (citation and

internal quotation marks omitted).

State v. Calvert

20150213-CA 8 2017 UT App 212

¶18 Second, Calvert contends that the trial court erred in

granting the State’s motion to admit other bad acts evidence

under rule 404(b) of the Utah Rules of Evidence. We will reverse

a trial court’s decision to admit evidence of other bad acts under

rule 404(b) only if the trial court exceeded its discretion and the

error was harmful. State v. High, 2012 UT App 180, ¶ 14, 282 P.3d

1046.

¶19 Third, Calvert contends that his trial counsel provided

constitutionally ineffective assistance in failing to object when

the prosecutor proposed sending his laptop into the jury

deliberation room, and that such failure constitutes structural

error for which prejudice is presumed. As set forth above, we

consider Calvert’s ineffective assistance of counsel claim as a

matter of law. See Carr, 2014 UT App 227, ¶ 6.

ANALYSIS

I. Double Jeopardy Arguments

¶20 Calvert contends that his trial counsel provided

constitutionally ineffective assistance when he failed to raise

arguments related to double jeopardy. In particular, he asserts

that his trial counsel performed deficiently by (A) failing to

move the trial court to merge the threatening conviction into the

aggravated assault conviction, (B) failing to move to dismiss one

of the two charges on the ground that it could lead to “multiple

verdicts for the same conduct,” and (C) failing to request that the

threatening with a dangerous weapon charge be submitted to

the jury as a lesser included offense of the aggravated assault

charge.

¶21 The Sixth Amendment guarantees defendants the right to

effective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 684–86 (1984). To prevail on a claim of ineffective assistance

of counsel, a defendant must show (1) “that counsel’s

State v. Calvert

20150213-CA 9 2017 UT App 212

performance was deficient,” and (2) “that the deficient

performance prejudiced the defense.” Id. at 687.

¶22 With regard to the first prong, we “must indulge a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” Id. at 689. “This

presumption accounts for the widely varying circumstances

faced by defense counsel [and] the range of legitimate decisions

regarding how best to represent a criminal defendant.” Met v.

State, 2016 UT 51, ¶ 113, 388 P.3d 447 (alteration in original)

(citation and internal quotation marks omitted). A defendant

must therefore establish “that the challenged actions cannot be

considered sound strategy under the circumstances.” Menzies v.

State, 2014 UT 40, ¶ 76, 344 P.3d 581 (citation and internal

quotation marks omitted). Furthermore, “because the decision

not to pursue a futile motion is almost always a sound trial

strategy,” counsel’s failure to make a motion that would be futile

if raised does not constitute deficient performance. State v. Bond,

2015 UT 88, ¶ 63, 361 P.3d 104 (citation and internal quotation

marks omitted).

A. Trial Counsel’s Failure to Move for Merger

¶23 First, Calvert contends that he received ineffective

assistance of counsel when his trial counsel failed to move for

merger of his two convictions. According to Calvert, because the

elements of aggravated assault and threatening with a

dangerous weapon “sufficiently overlap,” and because the

crimes were not “sufficiently independent,” trial counsel should

have moved to consolidate the convictions under the merger

doctrine. The State responds that Calvert’s counsel did not

perform deficiently, arguing that any motion to merge would

have been futile. In support, the State asserts that merger is

precluded because threatening with a dangerous weapon “has

an additional element that aggravated assault does not” and

because the threatening charge “was based on separate

conduct.”

State v. Calvert

20150213-CA 10 2017 UT App 212

¶24 We agree with the State that, had Calvert’s counsel sought

merger, the motion would not have been successful. See id. “The

motivating principle behind the merger doctrine is to prevent

violations of constitutional double jeopardy protection.” State v.

Smith, 2005 UT 57, ¶ 7, 122 P.3d 615. Utah Code section 76-1-402

codifies the merger doctrine, stating, “A defendant may be

convicted of an offense included in the offense charged but may

not be convicted of both the offense charged and the included

offense.” Utah Code Ann. § 76-1-402(3) (LexisNexis 2012); see also

Smith, 2005 UT 57, ¶ 8 (stating that “the test for determining

whether a conviction for two separate offenses violates the

Double Jeopardy Clause ‘is essentially the same as that in Utah

Code [section] 76-1-402(3)’” (quoting State v. Wood, 868 P.2d 70,

90 (Utah 1993))). The statute sets out the circumstances in which

an offense will be deemed a lesser included offense for purposes

of merger, including when the lesser offense “is established by

proof of the same or less than all the facts required to establish

the commission of the offense charged.” Utah Code Ann. § 76-1-

402(3)(a).

¶25 The Utah Supreme Court has identified a “two-part test

for determining whether a conviction for a second offense

arising out of the same set of facts violates” Utah Code section

76-1-402(3)(a). Smith, 2005 UT 57, ¶ 9. The test requires “a

comparison of ‘the statutory elements of the two crimes [first] as

a theoretical matter and [second], where necessary, by reference

to the facts proved at trial.’” Id. (alterations in original) (quoting

State v. Hill, 674 P.2d 96, 97 (Utah 1983)). Under the first step,

“we compare the statutory elements to determine if the lesser

offense is proven by the same or less than all the elements

required to prove the greater offense.” State v. Berriel, 2011 UT

App 317, ¶ 8, 262 P.3d 1212, aff’d on other grounds, 2013 UT 19,

299 P.3d 1133. If “the greater [offense] cannot be committed

without necessarily having committed the lesser, then the lesser

offense merges into the greater crime.” State v. Chukes, 2003 UT

State v. Calvert

20150213-CA 11 2017 UT App 212

App 155, ¶ 10, 71 P.3d 624 (citation and internal quotation marks

omitted).

¶26 “In most cases, comparison of the statutory elements will

suffice to determine whether a greater–lesser relationship

exists.” Id. (citation and internal quotation marks omitted). For

instance, when a lesser offense always “requires ‘proof beyond

that needed for proof of the bare elements of [the greater

offense],’” the lesser offense is not a lesser included offense of the

greater offense. See id. ¶ 12 (quoting State v. Brooks, 908 P.2d 856,

862 (Utah 1995)). “Only if [the first analytic step] does not

resolve the [issue] need we proceed to the second analytic step.”

Id. ¶ 10 (alterations in original) (citation and internal quotation

marks omitted). “[W]here the two crimes have multiple

variations, we proceed to the second step and consider the

evidence to determine whether the greater–lesser relationship

exists between the specific variations of the crimes actually

proved at trial.” Id. (citation and internal quotation marks

omitted).2

2. Calvert suggests that his counsel was ineffective for not

seeking to move for merger of his two convictions under the socalled

Finlayson merger doctrine, whereby the Utah Supreme

Court held that merger may be required for some offenses that

are so related even though the offenses do not merge under

section 76-1-402. See State v. Finlayson, 2000 UT 10, ¶ 19, 994 P.2d

1243 (allowing for kidnapping to merge with another crime

where the kidnapping is merely incidental to the other crime).

But Calvert makes no attempt to demonstrate the applicability of

the doctrine here. Calvert merely concludes that the threatening

with a dangerous weapon charge is not sufficiently independent

of the aggravated assault to justify a separate conviction.

Because Calvert has failed to demonstrate that the Finlayson test

applies here, or how it should be applied, we do not consider

this argument further. See State v. Thomas, 961 P.2d 299, 305

(continued…)

State v. Calvert

20150213-CA 12 2017 UT App 212

¶27 We begin application of the two-step Hill test by

identifying the elements of the relevant crimes. The crime of

third degree aggravated assault is perpetrated when a person

intentionally, knowingly, or recklessly commits assault and uses

“a dangerous weapon” or “other means or force likely to

produce death or serious bodily injury.”3 Utah Code Ann. § 76-5-

103(1) (LexisNexis 2012); see also id. § 76-2-102 (stating that

“when the definition of the offense does not specify a culpable

mental state and the offense does not involve strict liability,

intent, knowledge, or recklessness shall suffice to establish

criminal responsibility”). An assault is

(…continued)

(Utah 1998) (explaining that an adequately briefed argument

must include development of legal authority and reasoned

analysis based on that authority).

Similarly, Calvert cites the framework applicable to

requests for lesser included offense instructions set forth in State

v. Baker, 671 P.2d 152 (Utah 1983). That framework, however,

applies to requests for instructions before a case is submitted to

the jury. Id. at 156–59; accord State v. Powell, 2007 UT 9, ¶ 24, 154

P.3d 788; Duran v. Cook, 788 P.2d 1038, 1041 n.2 (Utah Ct. App.

1990). And Calvert has provided no authority applying the Baker

framework here, where the question is whether the charges

against the defendant should merge following conviction. Thus,

we decline to apply it.

3. We note that the jury instructions in this case did not include

the variation of aggravated assault that involves the use of

“other means or force likely to produce death or serious bodily

injury.” See Utah Code Ann. § 76-5-103(1) (LexisNexis 2012). The

instructions also did not include the reckless mental state but

required that Calvert act intentionally or knowingly.

State v. Calvert

20150213-CA 13 2017 UT App 212

(a) an attempt, with unlawful force or violence, to

do bodily injury to another; (b) a threat,

accompanied by a show of immediate force or

violence, to do bodily injury to another; or (c) an

act, committed with unlawful force or violence,

that causes bodily injury to another or creates a

substantial risk of bodily injury to another.

Id. § 76-5-102(1). On the other hand, the crime of threatening

with or using a dangerous weapon in a fight or quarrel is

committed when, except in self-defense, a person, “in the

presence of two or more persons, draws or exhibits a dangerous

weapon in an angry and threatening manner or unlawfully uses

a dangerous weapon in a fight or quarrel.” Id. § 76-10-506(2).4

¶28 A comparison of the elements of the threatening with a

dangerous weapon and aggravated assault statutes reveals that

the former has “a unique element that precludes it from being a

lesser included offense” of aggravated assault. See Chukes, 2003

UT App 155, ¶ 12. Specifically, threatening with a dangerous

weapon always requires proof that the conduct occurred in “the

presence of two or more persons.” Utah Code Ann. § 76-10-

506(2). Because aggravated assault does not have the same

requirement, the offense of threatening with a dangerous

weapon “requires proof beyond that needed for proof of the bare

elements of [aggravated assault].” See Chukes, 2003 UT App 155,

¶ 12 (citation and internal quotation marks omitted). In other

words, a person may commit aggravated assault without

necessarily also committing the offense of threatening with a

dangerous weapon. See id. ¶ 10. As a result, threatening with a

dangerous weapon is not a lesser included offense of aggravated

assault for purposes of merger under Utah Code section 76-1-

4. The relevant statutory provisions have been amended since

the time of the offenses. We cite the version of the Utah Code in

effect in 2012.

State v. Calvert

20150213-CA 14 2017 UT App 212

402(3)(a). See Chukes, 2003 UT App 155, ¶ 12 (rejecting the

argument that identity fraud is a lesser included offense of theft

by deception because identity fraud “requires proof that the

defendant obtained personal identifying information without

authorization,” while theft by deception “does not require such

proof”); see also State v. Jackson, 2011 UT App 318, ¶ 14, 263 P.3d

540 (“Unlawful Sexual Conduct requires the State to prove that

the minor is sixteen or seventeen years old and that the

defendant is at least ten years older than the minor. Therefore,

the establishment of all of the elements of rape will not also

prove Unlawful Sexual Conduct, and it is not a lesser included

offense of rape.”).

¶29 In support of his position, however, Calvert relies on State

v. Oldroyd, 685 P.2d 551 (Utah 1984). Specifically, Calvert quotes

the Utah Supreme Court’s statements that the statutes defining

aggravated assault and threatening with a dangerous weapon

“have elements in common” because “[b]oth require a form of

threat and both require the use of a weapon.” See id. at 554. We

conclude that Oldroyd is not controlling here.

¶30 In Oldroyd, the issue was whether the trial court erred in

refusing the defendant’s request “to instruct the jury regarding

the offense of threatening with a dangerous weapon.” Id. at 552.

To evaluate that issue, the supreme court applied the framework

from State v. Baker, 671 P.2d 152 (Utah 1983), by considering,

first, whether there was “some overlapping of the statutory

elements of the offenses,” and, second, whether the evidence in

that particular case provided “a rational basis for a verdict

acquitting the defendant of the offense charged and convicting

him of the included offense.” Oldroyd, 685 P.2d at 553–54

(citation, emphasis, and internal quotation marks omitted); see

also supra note 2. Under this framework, the court concluded that

the trial court should have given a jury instruction on the lesser

included offense of threatening with a dangerous weapon.

Oldroyd, 685 P.2d at 554–56; see also State v. Campos, 2013 UT App

213, ¶ 78, 309 P.3d 1160 (reviewing the denial of a request for a

State v. Calvert

20150213-CA 15 2017 UT App 212

lesser included offense instruction and stating that Oldroyd held

that “threatening with a dangerous weapon qualifies as a lesser

included offense of aggravated assault” (citing Oldroyd, 685 P.2d

at 554)). Significantly, however, Oldroyd did not address whether

convictions for aggravated assault and threatening with a

dangerous weapon would merge.

¶31 We conclude that Calvert has not demonstrated that for

purposes of merger, threatening with a dangerous weapon is a

lesser included offense of aggravated assault. As a result, he has

not shown that a motion to merge his convictions would have

been successful and that therefore his trial counsel rendered

ineffective assistance when he failed to pursue such a motion.

See State v. Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (explaining that

counsel’s failure to raise a futile motion does not amount to

ineffective assistance). Calvert’s claim of ineffective assistance on

this ground accordingly fails. See id. ¶ 61.

B. Trial Counsel’s Failure to Move to Dismiss

¶32 Second, Calvert briefly contends that his trial counsel

rendered constitutionally deficient assistance when he failed to

seek dismissal of one of the charges on the basis of multiplicity.

The State responds that the problem of multiplicity arises only

“from charging multiple counts of the same offense,” whereas

this case involves “two charges under two different code

sections.” The State also argues that trial counsel “could have

reasonably decided to forgo a multiplicity challenge” because

the evidence supported multiple counts of both threatening with

a dangerous weapon and aggravated assault, even though “the

State only charged one of each.”

¶33 We agree with the State that, had Calvert’s counsel

moved to dismiss on multiplicity grounds, the motion would not

have been successful. See id. ¶ 63. The rule against multiplicity

“prohibits multiple punishments for the same offense.” State v.

Rasabout, 2015 UT 72, ¶ 26, 356 P.3d 1258 (citation and internal

State v. Calvert

20150213-CA 16 2017 UT App 212

quotation marks omitted). This court has recognized that the

“problem of multiplicity arises when ‘a single offense [is

charged] in several counts.’” State v. Rasabout, 2013 UT App 71,

¶ 10, 299 P.3d 625 (alteration in original) (quoting 1A Charles

Alan Wright et al., Federal Practice & Procedure: Criminal § 142, at

10 (4th ed. 2008)), aff’d, 2015 UT 72, 356 P.3d 1258; see also

Multiplicity, Black’s Law Dictionary 1174 (10th ed. 2014)

(defining multiplicity as the “improper charging of the same

offense in more than one count of a single indictment or

information”). This may occur in two situations: (1) “where the

indictment charges multiple violations of the same statute but

the[] counts are predicated on the same criminal conduct,” or (2)

“when [a] defendant is charged in the indictment with violating

two separate crimes, one of which is a lesser included offense of

the other.” 1A Charles Alan Wright et al., Federal Practice

& Procedure: Criminal § 142, at 10 (4th ed. 2008).

¶34 Neither situation is present here. First, Calvert was not

charged with “multiple violations of the same statute.” See id.

Instead, he was charged with one count of aggravated assault

and with one count of threatening with or using a dangerous

weapon in a fight or quarrel. These two separate crimes are not

based upon the same statute.5 Second, threatening with a

dangerous weapon is not a lesser included offense of aggravated

assault. See supra ¶ 28. Thus, multiplicity was not implicated in

this case. Because a motion to dismiss on the basis of multiplicity

would have been denied, we conclude that Calvert’s trial

counsel did not perform deficiently by failing to pursue that line

5. Aggravated assault is an offense against the person, Utah

Code Ann. § 76-5-103(1) (LexisNexis 2012), whereas threatening

with a dangerous weapon is a weapons offense, id. § 76-10-

506(2).

State v. Calvert

20150213-CA 17 2017 UT App 212

of argument and that Calvert cannot show ineffective assistance

of counsel.6 See Bond, 2015 UT 88, ¶¶ 61, 63.

C. Trial Counsel’s Failure to Seek a Lesser Included Offense

Instruction

¶35 Third, Calvert contends that he received ineffective

assistance when his trial counsel failed to request that the

threatening with a dangerous weapon charge be submitted to

the jury as a lesser included offense of the aggravated assault

charge. But at oral argument before this court, Calvert conceded

that trial counsel’s decision not to request such an instruction

was “a matter of strategy.” Thus, having conceded that the

challenged action might be considered sound trial strategy,

Calvert’s claim of ineffective assistance necessarily fails. See

Menzies v. State, 2014 UT 40, ¶ 76, 344 P.3d 581.

6. Calvert also asserts, in cursory fashion, that because the

altercation “occurred within a brief period of time and all within

the same space,” his trial counsel should have sought dismissal

of a charge on the ground that the offenses were part of a “single

criminal episode.” “‘An appellant that fails to devote adequate

attention to an issue is almost certainly going to fail to meet its

burden of persuasion. A party must cite legal authority on which

its argument is based and then provide reasoned analysis of how

that authority should apply in the particular case . . . .’” State v.

MacNeill, 2017 UT App 48, ¶ 83, 397 P.3d 626 (quoting Bank of

Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196). Calvert’s single

criminal episode argument quotes statutory language, but he

does not offer any reasoned and developed analysis of that

authority and does not demonstrate how that authority applies

here. Because his overall analysis of this issue “is so lacking as to

shift the burden of research and argument to the reviewing

court,” see id. (citation and internal quotation marks omitted),

Calvert has not carried his burden of persuasion on this issue.

State v. Calvert

20150213-CA 18 2017 UT App 212

II. Rule 404(b) Evidence

¶36 Next, Calvert contends that the trial court erred in

granting the State’s motion to admit other bad acts evidence

under rule 404(b) of the Utah Rules of Evidence. In particular, he

asserts that the evidence of the Holladay incident was not

admissible for any proper purpose and that instead its “sole

purpose [was] to demonstrate [his] bad character.” We need not

resolve this question, however, because we agree with the State

that any error in admitting the evidence was harmless under the

facts of this case.

¶37 Rule 404(b) provides that “[e]vidence of a crime, wrong,

or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

conformity with the character.” Utah R. Evid. 404(b)(1).

Notwithstanding this general prohibition, such “evidence may

be admissible for another purpose.” Id. R. 404(b)(2). Examples of

permissible purposes include “proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Id.

¶38 But “even if the admission of rule 404(b) evidence by the

trial court was in error, reversal on appeal is not appropriate

unless [Calvert] demonstrates that the error materially affected

the fairness or outcome of the trial.” See State v. Otterson, 2010 UT

App 388, ¶ 11, 246 P.3d 168. Indeed, we “will not overturn a jury

verdict for the admission of improper evidence if the admission

of the evidence did not reasonably affect the likelihood of a

different verdict.” State v. Ferguson, 2011 UT App 77, ¶ 19, 250

P.3d 89 (citation and internal quotation marks omitted).

“Harmless errors are those that are sufficiently inconsequential

so no reasonable likelihood exists that the error affected the

outcome of the proceedings.” Id. (citation and internal quotation

marks omitted).

State v. Calvert

20150213-CA 19 2017 UT App 212

¶39 The evidence regarding the Holladay incident was

introduced entirely through Former Neighbor who testified that

she was attacked by Calvert about four years before the July

2012 altercation. Former Neighbor explained that she confronted

Calvert, who lived in the other apartment of her duplex, after

seeing him taking pictures while hiding behind her car. Calvert

pushed Former Neighbor to the ground while swearing at her

and threatening to “kill [her].” On cross-examination, Former

Neighbor testified that she and Calvert both brought, and later

dropped, charges against each other after the Holladay incident.

She also testified that Calvert had threatened her “quite a few

times” but she did not call the police.

¶40 Assuming, without deciding, that the evidence of the

Holladay incident was improperly admitted, Calvert has not

demonstrated that its admission was harmful under the

circumstances of this case. Despite the fact that the Holladay

incident had the potential for the jurors to draw impermissible

inferences about Calvert’s character, it is not reasonably likely

that the exclusion of the evidence would have led to a different

result. We reach this conclusion because the evidence of

Calvert’s guilt was compelling. See id. ¶¶ 19–20 (considering the

strength of the State’s evidence in concluding that the improper

admission of rule 404(b) evidence did not prejudice the

defendant).

¶41 Several witnesses testified that Calvert began arguing

with the minors when they were passing by his property. They

recounted how Calvert yelled and swore at the minors to leave

and not to touch his property. Five witnesses, including minors

and adults, testified that when Uncle—the victim of the

aggravated assault—went to confront Calvert, Calvert pointed a

gun with a laser attachment at him. Many of the State’s

witnesses testified that Calvert had a gun in his hand during his

arguments with the neighbors. One witness reported seeing

Calvert put the gun away in the garage before the police arrived,

and Officer testified that a gun with a laser sight was found in

State v. Calvert

20150213-CA 20 2017 UT App 212

the garage that matched the witnesses’ descriptions. In addition,

the jury heard the recording of a 911 call and had before it

written witness statements that were largely consistent with the

witnesses’ testimonies at trial. Although there were some

discrepancies in the testimony from the numerous eyewitnesses,

the essential components of the story were consistent.

¶42 In contrast, Calvert testified to a version of events that

was uncorroborated. He did not deny that he had a gun and

pointed it at someone that evening, but he argued that he acted

in self-defense and in defense of habitation. Calvert admitted to

arguing with the minors and testified that they vandalized his

property by breaking a sprinkler and scratching his car with a

tree branch. According to Calvert, the group then left, he fixed

the sprinkler, and he sat outside on his porch to have dinner

when he was startled by a stranger “trying to reach through [the]

railing [to] grab [him].” After the alarms to his house and garage

went off, Calvert grabbed a gun from his bedroom, went to

investigate, and found a man standing in his garage. Calvert

pointed the gun at the man’s head, telling him to get off the

property. The man put his hands up and backed down the

driveway. When the police arrived, Calvert set his gun and

paddle holster down in his garage.

¶43 But Calvert’s story was not supported by any other

evidence. For example, B.M., the neighbor across the street who

testified for the defense, saw a “red dot” “dancing around” on

the ground even before he came out of his house, and saw that

Calvert was arguing with a man on the sidewalk near Calvert’s

driveway. B.M.’s testimony thus did not lend support to

Calvert’s account of events. Moreover, Officer testified that

during the night of the altercation, Calvert did not mention

someone grabbing him through the railing on his porch or

someone being in his garage.

¶44 And even before Calvert testified, the State had cast doubt

on Calvert’s credibility through Officer’s testimony. For instance,

State v. Calvert

20150213-CA 21 2017 UT App 212

according to Officer, Calvert initially said that he had a laser

pointer, not a gun, when he was sitting on the porch. Calvert

then showed Officer his Smith & Wesson Sigma and explained

that he had not removed it from the bedroom. But when Officer

informed Calvert that the neighbors saw him put a gun in the

garage, Calvert admitted that “it was the Sigma that he had.”

Thus, Officer’s testimony showed that Calvert’s statements had

shifted. In addition, according to Officer, the Smith & Wesson

Sigma did not have a laser sight and thus did not match the

witnesses’ descriptions of Calvert’s gun. The Glock later found

in the garage, however, had a laser sight on it. In light of the fact

that the numerous eyewitnesses’ testimonies were largely

consistent and the fact that Calvert’s testimony was

uncorroborated and his credibility was in question, the State’s

case against Calvert was strong even without reference to the

Holladay incident. See State v. Ferguson, 2011 UT App 77, ¶¶ 19–

20, 250 P.3d 89.

¶45 In addition to the strength of the evidence of Calvert’s

guilt, the prosecutor did not mention the Holladay incident in

opening or closing statements or any other time, and the

likelihood of the jury drawing impermissible inferences from

Former Neighbor’s testimony was mitigated by a limiting

instruction. Specifically, the court instructed the jury that it

could not convict Calvert simply because it believed “that he

may have committed some other act at some other time,” and

explained that the evidence regarding the Holladay incident was

“not admitted to prove a character trait of the defendant nor to

show that the defendant has a propensity to act in a certain

way.” This instruction tempered any harmful effect the

admission of Former Neighbor’s testimony may have had. See

State v. Marchet, 2012 UT App 197, ¶ 14, 284 P.3d 668.

¶46 Under the facts of this case, we conclude that any

assumed error in the admission of the Holladay incident did not

prejudice Calvert. Given the strength of the State’s evidence and

given the weaknesses in Calvert’s account, Calvert has not

State v. Calvert

20150213-CA 22 2017 UT App 212

shown that had the testimony of the Holladay incident been

excluded, it is reasonably likely that the jury would have found

him not guilty. Accordingly, we reject Calvert’s claims in this

regard.

III. The Laptop

¶47 Calvert argues that his trial counsel provided

constitutionally ineffective assistance in failing to object when

the prosecutor proposed sending the State’s laptop into the jury

deliberation room. Calvert contends that his counsel’s failure to

object constitutes structural error “for which prejudice must be

presumed.” In the alternative, Calvert requests that we remand

this case to the trial court under rule 23B of the Utah Rules of

Appellate Procedure to create a record sufficient to support this

claim of ineffective assistance.

A. Structural Error

¶48 Calvert argues that his trial counsel provided

constitutionally ineffective assistance in failing to object when

the prosecutor proposed sending the State’s laptop into the jury

deliberation room and in failing to request an evidentiary

hearing during which the jurors could be questioned as to the

use of the laptop.

¶49 As we have previously stated, to demonstrate ineffective

assistance of counsel, Calvert must show (1) that his counsel’s

performance was deficient, and (2) that the deficient

performance prejudiced his defense. Strickland v. Washington, 466

U.S. 668, 687 (1984). Under the second prong of this test, “the

defendant bears the burden of proving that counsel’s errors

actually had an adverse effect on the defense.” State v. Munguia,

2011 UT 5, ¶ 30, 253 P.3d 1082 (citation and internal quotation

marks omitted). The proof that trial counsel’s acts or omissions

prejudiced him “must be a demonstrable reality and not a

State v. Calvert

20150213-CA 23 2017 UT App 212

speculative matter.” State v. Nelson, 2015 UT 62, ¶ 10, 355 P.3d

1031 (citation and internal quotation marks omitted).

¶50 Calvert filed a post-trial motion to arrest judgment,

arguing that the verdict was “incurabl[y] taint[ed]” because

“[t]here is no way to ever know for certain whether the juror[s]

used the computer, accessed government files on the computer,

learned of other evidence, or communicated with outside

parties.” The trial court denied the motion, relying on the State’s

representation that the laptop contained no case-related

information and was only a tool to review admitted evidence.

The court reasoned that because the laptop was “controlled” and

“was only for the playing of the 9-1-1 call,” the verdict was not

tainted.

¶51 On appeal, Calvert asserts that this court should presume

prejudice because “allow[ing] the [S]tate’s laptop computer to be

utilized by the jury during deliberations” deprived him of “the

right to an impartial jury” and “the right to counsel,” and

therefore constituted a structural defect.7

¶52 “Structural errors are flaws in the framework within

which the trial proceeds, rather than simply an error in the trial

process itself.” State v. Cruz, 2005 UT 45, ¶ 17, 122 P.3d 543

(citation and internal quotation marks omitted). Because such

errors “affect the very framework of the trial,” “a structural error

analysis presumes prejudice.” Id. The United States Supreme

Court has “found structural errors only in a very limited class of

cases,” Johnson v. United States, 520 U.S. 461, 468 (1997), including

when “‘assistance of counsel has been denied entirely or during a

7. Calvert does not directly appeal the trial court’s denial of the

motion to arrest judgment, arguing instead that the court’s

failure to grant the motion “simply reinforced the structural

error” that occurred when his trial counsel failed to object to the

prosecutor’s offer to allow the jury to use the laptop.

State v. Calvert

20150213-CA 24 2017 UT App 212

critical stage of the proceeding,’” State v. Maestas, 2012 UT 46,

¶ 57, 299 P.3d 892 (quoting Mickens v. Taylor, 535 U.S. 162, 166

(2002)). The denial of the right to a jury trial is also structural

error. See Sullivan v. Louisiana, 508 U.S. 275, 281–82 (1993).

¶53 Calvert was denied neither counsel nor a jury trial. He

received both. And Calvert does not develop a supported and

reasoned analysis that would establish that he was deprived of

the rights to counsel and a jury trial merely because the jury had

access to a laptop supplied by the prosecution or because his

counsel did not object. As this court “will not assume a party’s

burden of argument and research,” Broderick v. Apartment Mgmt.

Consultants, LLC, 2012 UT 17, ¶ 9, 279 P.3d 391 (citation and

internal quotation marks omitted), Calvert thus has not

demonstrated that the jury’s access to the prosecutor’s laptop in

this case deprived him of the right to counsel or the right to an

impartial jury. Accordingly, Calvert’s assertion of structural

error and presumed prejudice fails.8

8. We further note that even if Calvert had shown that the jury’s

access to the laptop could be labeled a “structural error,” the

application of the label would not have automatically relieved

him of his burden to demonstrate prejudice. The United States

Supreme Court recently held that where an unpreserved claim of

structural error is challenged through the framework of

ineffective assistance of counsel, prejudice is not presumed. See

Weaver v. Massachusetts, 137 S. Ct. 1899, 1908, 1910–11 (2017).

Instead, the defendant must demonstrate “either a reasonable

probability of a different outcome in his or her case” or “show

that the particular . . . violation was so serious as to render his or

her trial fundamentally unfair.” Id. at 1911; see also State v. Garcia,

2017 UT 53, ¶ 36.

State v. Calvert

20150213-CA 25 2017 UT App 212

B. Rule 23B Motion

¶54 In the alternative, Calvert requests that we remand this

case to the trial court under rule 23B of the Utah Rules of

Appellate Procedure to allow him to create a record sufficient to

support this claim of ineffective assistance of counsel.

Specifically, Calvert asserts that we should remand the case “for

the trial court to determine whether extraneous prejudicial

information was improperly brought to the jury’s attention or an

outside influence was improperly brought to bear on any juror

as a consequence of the ineffective assistance of counsel.” If

granted a hearing, Calvert states that “[e]ach of the jurors can

thereby be called as witnesses . . . and a final determination

made as to whether prejudicial information came forward as a

result of the jury’s use of the State’s laptop computer.”

¶55 Rule 23B allows a party to an appeal in a criminal case to

“move the court to remand the case to the trial court for entry of

findings of fact, necessary for the appellate court’s determination

of a claim of ineffective assistance of counsel.” Utah R. App. P.

23B(a). The rule requires the motion to “include or be

accompanied by affidavits alleging facts . . . that show the

claimed deficient performance of the attorney.” Id. R. 23B(b).

“The affidavits shall also allege facts that show the claimed

prejudice suffered by the appellant as a result of the claimed

deficient performance.” Id.

¶56 “A remand under rule 23B will only be granted ‘upon a

nonspeculative allegation of facts, not fully appearing in the

record on appeal, which, if true, could support a determination

that counsel was ineffective.’” State v. Lee, 2014 UT App 4, ¶ 5,

318 P.3d 1164 (quoting Utah R. App. P. 23B(a)). Thus, rule 23B

“requires a party to perform the factual investigation before

asking this court for a remand.” Mackin v. State, 2016 UT 47, ¶ 41,

387 P.3d 986. “The mere hope that an individual may be able to

provide information if subpoenaed to testify is not sufficient. An

State v. Calvert

20150213-CA 26 2017 UT App 212

affiant must submit specific facts and details that relate to the

specific relevant occurrence.” State v. Griffin, 2015 UT 18, ¶ 19.

¶57 In support of his motion, Calvert supplies unsworn

statements from three individuals who were present in the

courtroom gallery during trial. The only fact not fully appearing

in the record provided in these statements is that after the

verdict was read, the prosecutor asked the bailiff to return his

laptop and that the bailiff appeared to retrieve it from the jury

deliberation room. Calvert also attaches an email from the

prosecutor, in which the prosecutor stated that the “office

laptop” left with the jury “[did] not have any of [his] files or

email on it.” The prosecutor also indicated that he did not know

“whether the jury used [the laptop] to listen to the cd or [if] the

bailiff had just taken it in back in case they needed it.”

¶58 Calvert has not adequately supported his rule 23B

motion. Specifically, he has not alleged facts that show his

claimed prejudice resulting from his trial counsel’s failure to

prevent the jury from having access to the laptop furnished by

the prosecutor. The statements from the courtroom spectators

and the prosecutor do not demonstrate that the laptop had any

“extraneous prejudicial information” on it or that the jury used it

or was exposed to an improper outside influence. Calvert could

have obtained affidavits from jurors to support his motion. See

Utah R. Evid. 606(b)(2) (providing that a juror may testify about

whether “extraneous prejudicial information was improperly

brought to the jury’s attention” or “an outside influence was

improperly brought to bear on any juror”). While Calvert asserts

that he will call the jurors to testify upon remand, he has not

provided affidavits to establish the “specific facts and details”

related to the jury’s alleged use of the laptop and exposure to

improper influences. See Griffin, 2015 UT 18, ¶ 19. Instead,

Calvert only speculates that the jury’s access to the state-owned

laptop exposed it to extraneous prejudicial information. See id.

(“[S]peculative allegations are those that have little basis in

articulable facts but instead rest on generalized assertions.”).

State v. Calvert

20150213-CA 27 2017 UT App 212

Because Calvert has failed to provide nonspeculative allegations that could support a determination that he would have obtained a more favorable outcome at trial but for counsel’s performance, we deny his rule 23B motion for remand. See Lee, 2014 UT App 4, ¶ 12.

¶59 Calvert has not shown that his trial counsel rendered constitutionally ineffective assistance in failing to raise arguments regarding merger, multiplicity, and lesser included offenses. In addition, we conclude that any assumed error in the admission of rule 404(b) evidence regarding Calvert’s confrontation with Former Neighbor does not undermine our confidence in the verdict. As to Calvert’s claim that his counsel was ineffective when he failed to object to the prosecutor furnishing the State’s laptop to the jury to view an admitted exhibit, Calvert has not shown that structural error occurred for which prejudice must be presumed, and we deny his related rule 23B motion. Accordingly, we affirm Calvert’s convictions.