State v. Painter

2014 UT App 272
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DANIEL PAINTER,
Defendant and Appellant.

Memorandum Decision
No. 20130628-CA
Filed November 14, 2014

Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 111402958

Douglas J. Thompson and Ryan C. Taylor,
Attorneys for Appellant

Sean D. Reyes, and Daniel W. Boyer, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and JAMES Z. DAVIS
concurred.

VOROS, Judge:

¶1 Appellant Daniel Painter appeals his conviction for
aggravated assault, a third degree felony. We affirm.

¶2 “When reviewing a jury verdict, we examine the evidence
and all reasonable inferences in a light most favorable to the
verdict, reciting the facts accordingly.” State v. Heaps, 2000 UT 5,
¶ 2, 999 P.2d 565. Painter and a neighbor (Neighbor) lived in
different apartments in the same four-plex. Painter outweighs
Neighbor by over a hundred pounds and stands a foot taller.
State v. Painter

One night around 4:00 a.m., Painter’s pounding on his water
heater woke Neighbor, who knocked on Painter’s door and
demanded that he stop. Painter responded by picking her up,
slamming her against a wooden railing (breaking it), grabbing
her by the hair, shaking her “like a rag doll,” laying her on the
ground, and jumping on her head, cracking her jaw. Painter then
wiped his feet on her head and wordlessly walked into his
apartment.1

¶3 Painter was charged with aggravated assault. His defense
at trial was that he acted in self-defense. He testified that
Neighbor had attacked him, shoving him twice and scratching
his face. Painter testified that he viewed himself as “a guard for
the property” and that he used “controlled force” to take
Neighbor to the ground. The jury convicted Painter as charged.

¶4 On appeal, Painter contends that his trial counsel
rendered ineffective assistance by failing to object to a jury
instruction that did not list the absence of self-defense as an
element of aggravated assault. Painter acknowledges that the
jury was correctly instructed on the law of self-defense in a
separate jury instruction. He further concedes that “these two
instructions can be reconciled” but argues that “because such
reconciliation never occurred,” the elements instruction
incorrectly stated the law.

¶5 A claim of ineffective assistance of counsel raised for the
first time on appeal presents a question of law. State v. Lee, 2014
UT App 4, ¶ 6, 318 P.3d 1164. To prevail on an ineffective-

1. Neighbor suffered bruising on her arms, legs, back, stomach,
and chest. In addition, a clump of her hair was “ripped out,”
leaving the middle of her head “totally bald.” Her jaw was
surgically repaired with permanent metal plates that prevent her
dentures from fitting properly.

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State v. Painter

assistance claim under the Sixth Amendment to the United
States Constitution, a defendant must show (1) that “counsel’s
performance was deficient” and (2) that “the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). To establish the deficient-performance
prong under Strickland, the defendant must demonstrate “that
counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687–88. A court must “indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689. To establish the
prejudice prong under Strickland, “the defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.

¶6 Under the first Strickland prong, “*f+ailure to object to jury
instructions that correctly state the law is not deficient
performance.” Lee, 2014 UT App 4, ¶ 22. To determine if jury
instructions correctly state the law, we “look at the jury
instructions in their entirety and will affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” State v. Maestas, 2012 UT 46, ¶ 148, 299
P.3d 892 (citation and internal quotation marks omitted). Thus,
“even if one or more of the instructions, standing alone, are not
as full or accurate as they might have been, counsel is not
deficient in approving the instructions as long as the trial court’s
instructions constituted a correct statement of the law.” Lee, 2014
UT App 4, ¶ 23 (citation and internal quotation marks omitted).

¶7 After Painter filed his opening brief in this case, this court
issued its opinion in State v. Lee, 2014 UT App 4. Like Painter,
Lee contended that the elements instruction on the charged
offense (in his case, murder) was erroneous because “the trial
court instructed the jury separately as to the State’s burden to
disprove his self-defense claim rather than incorporating that
burden as an element of the murder instruction.” Id. ¶ 24. We
rejected that claim, holding that, “*t+aken together, these

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State v. Painter

instructions fairly instructed the jury on the burden of proof
relative to Lee’s claim of self-defense” and thus correctly
instructed the jury on the law applicable to the case. Id.
Accordingly, we concluded, Lee’s trial counsel “did not perform
deficiently in failing to object or propose an alternate murder
instruction.” Id. ¶ 25.

¶8 Although Lee and Painter were charged with different
offenses, the deficient-performance claim Lee asserted and the
deficient-performance claim Painter asserts are analytically
indistinguishable. Accordingly, we hold that Lee forecloses
Painter’s claim of deficient performance.2

¶9 Our opinion in State v. Campos does not alter this
conclusion. See 2013 UT App 213, ¶¶ 62–72, 309 P.3d 1160.
Painter relies on Campos for the proposition that jury instructions
do not need to be read as a whole if they have “irreconcilable
conflict, or [are] so conflicting as to confuse or mislead the jury.”
Id. ¶ 64 (citation and internal quotation marks omitted). But in
Campos, the jury instructions were in “direct conflict”; one

2. At oral argument, Painter’s counsel faulted our opinion in Lee
for stating that absence of self-defense is not an element of
murder. See State v. Lee, 2014 UT App 4, ¶ 24, 318 P.3d 1164. In
fact, our supreme court has described the absence of self-defense
as both an element and not an element of murder. Compare State
v. Low, 2008 UT 58, ¶ 45, 192 P.3d 867 (stating that a “necessary
element of a murder conviction is the absence of affirmative
defenses”), with State v. Knoll, 712 P.2d 211, 214 (Utah 1985)
(stating that “*a+bsence of self-defense is not an element of a
homicide offense”). But element or not, the jury here was
instructed to find Painter not guilty if the State failed to prove
“beyond a reasonable doubt that the defendant did not act in
self-defense.” Read together, then, the jury instructions were
correct. See State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892.

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State v. Painter

correctly stated that the State bore the burden of disproving self-
defense beyond a reasonable doubt, whereas the other
incorrectly stated that the defendant bore the burden of proving
self-defense beyond a reasonable doubt. Id. In contrast, here the
jury instructions complement rather than contradict each other.
We are confident, as we were in Lee, that the instructions are not
“so conflicting as to confuse or mislead the jury.” Id. (citation
and internal quotation marks omitted). We see no danger that a
reasonable jury, having concluded that the State failed to
disprove self-defense beyond a reasonable doubt, and being
instructed that “if you still have a reasonable doubt as to
whether or not the defendant acted in self-defense, you must
find the defendant not guilty,” might nevertheless have
convicted based on the elements instruction.

¶ 10 Thus, under Lee, we hold that Painter’s trial counsel did
not perform deficiently. But even if that were not the case, we
would nevertheless conclude that Painter has failed to establish
prejudice.

¶ 11 Under Strickland, to establish prejudice “the defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S.
668, 694 (1984). Painter contends that this court, in Campos,
altered this test, adding the corollary that prejudice is assumed
when it cannot be told which instruction the jury followed or
what influence the erroneous instruction had on their
deliberations. But in Campos we did not purport to, nor did we
have the power to, create an exception to Strickland’s prejudice
requirement. Indeed, we cited the very passage from Strickland
quoted above. See Campos, 2013 UT App 213, ¶ 24. Consequently,
notwithstanding some lack of clarity in the wording of that
opinion, it is open to only one reasonable reading: the standard
of prejudice applicable to this type of claim for ineffective
assistance of counsel requires a showing of “a reasonable
probability that, but for counsel’s unprofessional errors, the

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State v. Painter

result of the proceeding would have been different.” See
Strickland, 466 U.S. at 694. Campos made that showing. Campos,
2013 UT App 213, ¶ 61.

¶ 12 The same cannot be said for Painter. Given the facts
recited in the opening paragraphs of this opinion, and others
appearing in the record and recited in the State’s brief, we
cannot conclude that Painter has established a reasonable
probability that, had the aggravated-assault instruction listed the
absence of self-defense as an element, the result of the
proceeding would have been any different.

¶ 13 Affirmed.

______________

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