Opinion
Case No. 20031009-CA.
Filed May 12, 2005. (Not For Official Publication).
Appeal from the Fifth District, Cedar City Department, 021501335, The Honorable J. Philip Eves.
J. Bryan Jackson, Cedar City, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Orme.
MEMORANDUM DECISION
Although Defendant raises several arguments, her appeal turns on two issues: (1) whether the trial court committed error in instructing the jury and (2) whether Defendant received the effective assistance of counsel at trial.
We agree with the State that Defendant's challenge to the sufficiency of the evidence is basically a restatement of her argument that the trial court committed error in failing to instruct the jury on a "claim of right" defense.
Normally, "we review the trial court's determination concerning jury instructions for correctness and accord it no particular deference." State v. Jones, 878 P.2d 1175, 1176 (Utah Ct.App. 1994). However, it has long been the law of this state that when a defendant does not object to (or request) an instruction, the defendant cannot claim on appeal that the trial court erred by including (or by failing to provide) the instruction. See State v. Kazda, 545 P.2d 190, 192-93 (Utah 1976); State v. Cowan, 26 Utah 2d 410, 490 P.2d 890, 892 (1971).
The record in this case clearly reflects that Defendant's trial counsel made no objection to the final jury instructions or to the exclusion of any proposed instructions counsel may have offered. Thus, Defendant is barred from asserting on appeal that the court committed some instructional error when Defendant's trial counsel did not bring any such error to the trial court's attention.
On the contrary, trial counsel affirmatively indicated he had no objection to the jury instructions as finalized by the court. This fact alone resolves the question of whether the "manifest injustice exception" might come to Defendant's aid.State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111.
Turning to Defendant's Sixth Amendment claim, she argues that her trial counsel's performance falls below the objective standard of reasonable professional judgment for failing to propose more detailed jury instructions on the elements of forgery as well as an instruction on the "claim of right" defense. The forgery instruction tracked the applicable statute and was correct as a matter of law. The claim of right defense does not apply to forgery or unlawful use of a financial transaction card. Cf. State v. Hobbs, 2003 UT App 27, ¶¶ 13-24, 64 P.3d 1218 (rejecting the application of claim of right defense to robbery and aggravated robbery "because the legislature specifically provided for the common law defense of claim of right only for theft charges"), cert. denied, 72 P.3d 685 (Utah 2003).
Defendant's reliance on State v. Winward, 909 P.2d 909 (Utah Ct.App. 1995), is misplaced in this straightforward forgery case where there was a clear evidentiary link between the unauthorized signature on the bank card application and her intent to defraud her ex-husband and the bank.
The claim of right defense may apply to the charge of theft of property, see Utah Code Ann. § 76-6-402(3) (2003), but we can readily conceive of sound tactical reasons that would explain trial counsel's decision not to request the instruction. See State v. Winward, 941 P.2d 627, 635 (Utah Ct.App. 1997) (requiring appellant to persuade the court "that counsel's actions were not conscious trial strategy," and that there was no "conceivable tactical basis for counsel's actions") (quotations and citations omitted). As pointed out by the State, telling the jury that the defense only applied to the theft charge would highlight its inapplicability to the more serious charges Defendant faced and, therefore, undercut trial counsel's strategy of arguing the fundamental legitimacy of Defendant's self-help approach to recovering the money she was due from her ex-husband.
Given that the forgery instruction was correct, that the "claim of right" defense was inapplicable to two of the three charges, and that sound trial strategy may well explain the decision not to request the jury be instructed on the claim of right defense as to the third charge, it follows that counsel was not ineffective in failing to object to the instructions given by the court or in advising the court that the instructions were acceptable. See id.
Affirmed.
WE CONCUR: Russell W. Bench, Associate Presiding Judge and James Z. Davis, Judge.