Opinion
Case No. 20020814-CA.
Filed March 3, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Timothy R. Hanson.
Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellant.
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
Before Judges Billings, Bench, and Davis.
MEMORANDUM DECISION
Mark Douglas Prideaux appeals his conviction for possession or use of a firearm by a restricted person. See Utah Code Ann. § 76-10-503(2)(a) (2003). Prideaux was also convicted of first degree murder but does not appeal that conviction. See Utah Code Ann. § 76-5-203 (2003).
Prideaux argues that his defense attorney rendered ineffective assistance of counsel. "To prevail on a claim of ineffective assistance of counsel, [a defendant] must show that (1) trial counsel's performance was objectively deficient and (2) there exists a reasonable probability that absent the deficient conduct the outcome would likely have been more favorable to [the defendant]." State v. Mecham, 2000 UT App 247, ¶ 21, 9 P.3d 777.
Prideaux first contends that his counsel's performance was objectively deficient because counsel elicited evidence from a police officer concerning Prideaux's parole status. Trial counsel's performance is objectively deficient "only when no conceivable legitimate tactic or strategy can be surmised from counsel's actions." State v. Tenneyson, 850 P.2d 461, 468 (Utah Ct. App. 1993). Here, we surmise that counsel acted pursuant to a legitimate strategy. After Prideaux was taken into custody, he initially identified himself as William Taylor to an investigating officer. On cross-examination of the officer, defense counsel apparently sought to dispel the inference that Prideaux lied about his name to avoid arrest for murder. Counsel's questions concerning Prideaux's parole status were calculated to create an alternative inference: that Prideaux lied, not because he was guilty of murder, but to avoid arrest for violating his parole. Attempting to bolster Prideaux's innocence on the murder charge in this manner is a legitimate strategy, and this tactic does not render counsel's performance objectively deficient.
To convict a defendant under Utah Code section 76-10-503, the prosecution must prove that the defendant falls within one of the categories of restricted persons. See Utah Code Ann. § 76-10-503(1)(a) (2003). The prosecution can meet this element by showing that the defendant "is a person who . . . is on probation or parole for any felony." Id.
In the alternative, Prideaux argues that his counsel's failure to move for a directed verdict on the firearms charge renders counsel's performance objectively deficient. Prideaux asserts that counsel should have moved for a directed verdict because the officer's testimony concerning Prideaux's parole status was not the "best evidence." Prideaux cites State v. Peterson, 560 P.2d 1387 (Utah 1977), for the proposition that parole status, as an element of a crime, must be proven by documentary evidence. However, Prideaux misreads Peterson. The Utah Supreme Court inPeterson held that a prosecutor seeking to impeach a witness by presenting evidence of a prior felony conviction must either elicit the evidence directly from the witness or present documentary evidence. See id. at 1389-90. Thus, counsel's failure to move for a directed verdict was not objectively deficient where there was no legal basis for such a motion.
We therefore affirm the conviction.
WE CONCUR: Judith M. Billings, Presiding Judge, James Z. Davis, Judge.