Opinion
Case No. 20040471-CA.
Filed December 8, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 031901024, The Honorable Robin W. Reese.
Jason Schatz, Salt Lake City, for Appellant.
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.
Before Judges Billings, Bench, and Greenwood.
MEMORANDUM DECISION
Defendant Harold Netzler argues that the trial court erred in admitting into evidence his verbal threat to kill the victim if she testified at trial. We disagree. "A trial court's decision to admit evidence . . . is reviewed for an abuse of discretion." In re L.N., 2004 UT App 120, ¶ 10, 91 P.3d 836 (quotations and citation omitted), cert. denied, 98 P.3d 1177 (Utah 2004). We "will only conclude the trial court abused its discretion if the ruling `was beyond the limits of reasonability.'" State v. Lindgren, 910 P.2d 1268, 1271 (Utah Ct.App. 1996) (citation omitted).
Although Netzler concedes that the death threat is relevant, he argues that its admission results in unfair prejudice. See Utah R. Evid. 403. The trial court found the threatening statement to be probative of Netzler's state of mind and his consciousness of guilt. We agree with the trial court that its probative value outweighed any prejudice. See id. As a result, its admission into evidence is not "beyond the limits of reasonability" and is not unfairly prejudicial. Lindgren, 910 P.2d at 1271.
Additionally, Netzler argues that his former counsel was ineffective in failing to adequately investigate the case and present evidence refuting the victim's allegations. "[W]here, on direct appeal, [the] defendant raises a claim that trial counsel was ineffective . . . [the] defendant bears the burden of assuring the record is adequate." State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92. If necessary, a defendant may seek remand to the trial court under a rule 23B motion for necessary findings. See Utah R. App. P. 23B. We rejected Netzler's rule 23B motion as inadequate, and the record on appeal contains nothing to support Netzler's claim. "Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively." Litherland, 2000 UT 76 at ¶ 17 (footnote omitted).
Netzler also asserts that his former counsel was ineffective for not objecting to the incomplete jury instructions establishing the elements of the crime. The element challenged on appeal was undisputed at trial; therefore, the incompleteness of the jury instructions constitutes harmless error at most. See State v. Stevenson, 884 P.2d 1287, 1292 (Utah Ct.App. 1994) (holding that the failure to instruct on the nonmarriage element of the rape statute was harmless error because that element was undisputed at trial). Because there is no "reasonable probability that the outcome of the trial would have been different," we hold that Netzler was not prejudiced by the incomplete jury instructions. State v. Cruz, 2005 UT 45, ¶ 38, 530 Utah Adv. Rep. 30 (quotations and citation omitted).
Finally, Netzler argues that the trial court committed plain error by failing to include the "intent to deprive" element of robbery in the jury instruction. Utah Code Ann. § 76-6-301(1)(a) (Supp. 2005). We disagree. Where "counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction[s], we will not review the instruction[s]" for plain error. State v. Hamiliton, 2003 UT 22, ¶ 54, 70 P.3d 111; see also State v. Pinder, 2005 UT 15, ¶¶ 62-63, 520 Utah Adv. Rep. 27 (declining to review the claim of plain error where the defendant "signal[ed] by an affirmative act that he had no objection" to the instruction below). "This prevents a party from `tak[ing] advantage of an error committed at trial when that party led the trial court into committing the error.'" Hamilton, 2003 UT 22 at ¶ 54 (alteration in original) (citation omitted). As Netzler's former counsel affirmatively represented to the court that he had no objection to the jury instructions, the claim of plain error is precluded.
Accordingly, we affirm.
WE CONCUR: Judith M. Billings, Presiding Judge, Pamela T. Greenwood, Judge.