State v. Young

2015 UT App 286

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOHN EDWARD YOUNG IV,
Appellant.

Memorandum Decision
No. 20140332-CA
Filed November 27, 2015

Fifth District Court, Cedar City Department
The Honorable Thomas M. Higbee
No. 135500022

Matthew D. Carling, Attorney for Appellant
Scott F. Garrett and Candace N. Reid, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.

PEARCE, Judge:

¶1 John Edward Young IV appeals from his convictions for
failing to stop at the command of a law enforcement officer,
reckless driving, and driving under the influence of alcohol or
drugs. We affirm.

¶2 On the afternoon of August 30, 2013, a Southern Utah
University police officer, Officer Townsend, responded to a
report of a disorderly student on campus. 1 When Townsend

1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
(continued…)
State v. Young

arrived at the scene of the disturbance, he observed the campus
police chief speaking with Young. Believing that the chief had
the situation under control, Townsend returned to his office.
Shortly thereafter, Townsend received another report of a
disorderly, and possibly intoxicated, individual on campus
whose description matched Young’s. Townsend saw Young
walking in a parking lot and headed toward him. Townsend
briefly lost sight of Young but soon discovered him sitting in the
driver seat of a car, apparently asleep.

¶3 Townsend approached Young’s car. Young rolled down
the car window. Townsend told Young that he needed to speak
with him. As Townsend began to explain the report of
disorderly conduct, Young put the car in reverse. Townsend put
his head in the window of the car and told Young to turn off the
engine and exit the car. Young drove away from Townsend.
Young circled in and out of the parking lot several times, driving
twenty-five to thirty miles per hour. Pedestrians and cars were
present as Young made his way in and out of the parking lot.

¶4 Townsend called for additional officers. When those
officers arrived and stopped Young, he smelled of alcohol.
Young admitted that he had been drinking alcohol and had
consumed prescription anti-anxiety medication. Young failed
field sobriety tests, and a breath test revealed that he had an
alcohol concentration of .114 grams, in excess of Utah’s legal
limit of .08 grams. See Utah Code Ann. § 41-6a-502(1)
(LexisNexis 2014).

¶5 The State charged Young with failing to stop at the
command of a law enforcement officer, reckless driving, and

(…continued)
the facts consistent with that standard.” State v. Nichols, 2003 UT
App 287, ¶ 2 n.1, 76 P.3d 1173 (citation and internal quotation
marks omitted).

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State v. Young

driving under the influence of alcohol and/or drugs. The charges
were tried to the bench, and the district court convicted Young
on all charges.

¶6 On appeal, Young argues that insufficient evidence
existed to convict him of either failure to stop or reckless driving.
When we review a bench trial for sufficiency of the evidence, we
will affirm the district court’s judgment unless it is “against the
clear weight of the evidence” or we otherwise reach “a definite
and firm conviction that a mistake has been made.” State v.
Bingham, 2015 UT App 103, ¶ 8, 348 P.3d 730 (citation and
internal quotation marks omitted).

¶7 Young first argues that that the evidence presented at trial
was insufficient to support his conviction for failing to stop at
the command of a law enforcement officer. Utah Code section
76-8-305.5 provides,

A person is guilty of a class A misdemeanor who
flees from or otherwise attempts to elude a law
enforcement officer: (1) after the officer has issued
a verbal or visual command to stop; (2) for the
purpose of avoiding arrest; and (3) by any means
other than a violation of Section 41-6a-210
regarding failure to stop a vehicle at the command
of a law enforcement officer.

Utah Code Ann. § 76-8-305.5 (LexisNexis 2012). Young
challenges the sufficiency of the evidence as to both Townsend’s
command to stop and Young’s intent to avoid arrest.

¶8 Young argues that Townsend’s testimony was
inconsistent as to exactly when Townsend instructed Young to
stop. Young posits that this inconsistency gives rise to a
reasonable doubt that Young fled “after” Townsend issued a
verbal or visual command to stop. See id. § 76-8-305.5(1)
(emphasis added). Although Townsend’s testimony varied, none

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State v. Young

of the variations resulted in a material ambiguity as to what
occurred. Townsend testified that he asked Young to step out of
his car as soon as Townsend approached the vehicle; that once
Young put the car in reverse, Townsend “pretty much stuck [his]
head in the window and told him to turn the car off”; and that,
at this point, Townsend had given Young “a command to stop
and exit the car.” Although Townsend later testified that he did
not remember exactly when he had commanded Young to stop,
Townsend insisted that he had done so during his interaction
with Young in the parking lot. In other words, notwithstanding
inconsistencies about the precise moment Townsend ordered
Young to stop, Townsend’s testimony consistently maintained
that he issued an instruction to stop before Young drove away
and began circling through the parking lot. This testimony is
sufficient to support the district court’s finding that Young fled
after Townsend had commanded Young to stop.

¶9 Young also argues that if his car was in motion at the time
Townsend instructed him to stop, he cannot be convicted of
violating Utah Code section 76-8-305.5. Young contends that
section 76-8-305.5 applies only to flight “by any means other than
a violation of Section 41-6a-210 regarding failure to stop a
vehicle at the command of a law enforcement officer.” Utah
Code Ann. § 76-8-305.5(3) (LexisNexis 2012) (emphasis added).
Young reasons that if his vehicle was in motion at the time of
Townsend’s command, then Young’s failure to stop the vehicle
violated Utah Code section 41-6a-210 and was thus not a
violation of section 76-8-305.5. See Utah Code Ann. § 41-6a-210
(LexisNexis 2014).

¶10 One reasonable interpretation of Townsend’s testimony is
that he commanded Young to stop before Young placed his
vehicle in motion. However, even if there is some question as to
the exact timing of the command to stop, we are not persuaded
that Utah Code section 76-8-305.5(3) precludes Young’s
conviction. Although there is no case directly on point regarding
section 76-8-305.5(3), Utah cases have interpreted similar

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State v. Young

provisions of other criminal statutes and held that those
provisions do not require the State to disprove the defendant’s
commission of the act or acts the statutory language excludes.
See, e.g., State v. Ansari, 2004 UT App 326, ¶¶ 10–13, 100 P.3d 231
(analyzing the language “not amounting to an attempt,
conspiracy, or solicitation” in Utah’s internet enticement statute
and concluding that the “clause does not require the State to
affirmatively prove absence of attempt, conspiracy, and
solicitation”); State v. Montoya, 910 P.2d 441, 443–46 (Utah Ct.
App. 1996) (concluding that “under circumstances not
amounting to rape, rape of a child or aggravated sexual assault”
is not a “discrete element of the crime of incest”). In light of this
case law and Townsend’s testimony, Young has failed to carry
his burden of persuasion on appeal on this argument. See State v.
Nielsen, 2014 UT 10, ¶ 34, 326 P.3d 645.

¶11 Young further argues that there was insufficient evidence
for the district court to find that Young fled from Townsend “for
the purpose of avoiding arrest.” Utah Code Ann. § 76-8-305.5(2).
The district court found that Young “was intoxicated, and
presumably knew that he was intoxicated” when Townsend
approached him as he sat in his car. It was both reasonable and
logical for the district court to then infer that Young knew he
could be arrested for driving under the influence and fled from
Townsend to avoid arrest. See State v. Briggs, 2008 UT 75, ¶ 11,
197 P.3d 628 (“[I]n those instances in which the trial court’s
findings include inferences drawn from the evidence, we will
not take issue with those inferences unless the logic upon which
their extrapolation from the evidence is based is so flawed as to
render the inference clearly erroneous.” (citation and internal
quotation marks omitted)). 2

2. Young also implies that the circumstances of his flight from
Townsend are inconsistent with a purpose to avoid arrest
because Young merely circled in and out of the parking lot after
his encounter with Townsend, rather than attempting to leave
(continued…)

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State v. Young

¶12 Young relies on our recent decision in Salt Lake City v.
Gallegos, 2015 UT App 78, 347 P.3d 842, for the proposition that
Utah Code section 76-8-305.5(2) requires the State to present
evidence, beyond a defendant’s flight itself, sufficient to support
an inference that the defendant “thought he was at risk for arrest
and was therefore motivated to flee.” Gallegos, 2015 UT App 78,
¶ 7. We agree with Young’s reading of Gallegos but conclude that
the evidence of Young’s intoxication satisfies the State’s burden.
Young’s alcohol concentration of .114 grams was over the legal
limit at the time Townsend approached him as he sat in the
driver seat of his car. It is reasonable to infer that this level of
intoxication gave Young an awareness of his risk of arrest for
driving under the influence of alcohol. See generally Utah Code
Ann. § 41-6a-502(1) (LexisNexis 2014) (“A person may not
operate or be in actual physical control of a vehicle within this
state if the person: . . . has a blood or breath alcohol
concentration of .08 grams or greater at the time of operation or
actual physical control.”).

¶13 We conclude that there was sufficient evidence to support
the district court’s findings that Young fled after Townsend
commanded him to stop and that Young did so for the purpose
of avoiding arrest. We therefore affirm Young’s conviction for
failing to stop at the command of a law enforcement officer.

¶14 Young also challenges the sufficiency of the evidence to
support his conviction for reckless driving. Specifically, Young
argues that there was no evidence that he operated his vehicle

(…continued)
the area entirely. While such an inference might be reasonable, it
is not the only reasonable inference to be drawn from the
evidence before the district court. The district court could have
inferred that Young’s return to the parking lot was the product
of intoxication, disorientation, or Young’s belated realization
that it was in his best interest to abandon his attempt to flee.

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State v. Young

“in willful or wanton disregard for the safety of persons or
property,” which is the theory of reckless driving upon which
Young was convicted. See Utah Code Ann. § 41-6a-528(1)(a)
(LexisNexis 2014). However, there is ample evidence to support
the district court’s finding.

¶15 Townsend testified that Young drove through the parking
lot at what “seemed like a high rate of speed,” “at least” twenty-
five to thirty miles per hour. Townsend further testified that
there were cars in the parking lot, as well as several people
walking in the lot, as Young drove through it. Compounding the
danger to persons and property, Young was under the influence
of alcohol. Under these circumstances, the district court’s finding
that Young drove in willful or wanton disregard for the safety of
persons or property is not “against the clear weight of the
evidence” nor does it leave us with a “definite and firm
conviction that a mistake has been made.” State v. Bingham, 2015
UT App 103, ¶ 8, 348 P.3d 730 (citation and internal quotation
marks omitted). Accordingly, we affirm Young’s conviction of
reckless driving.

¶16 Young also argues that his trial counsel provided him
with constitutionally ineffective assistance of counsel by failing
to pursue a motion to suppress evidence. “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). “To succeed on a claim of
ineffective assistance of counsel, a defendant must show both
‘that counsel’s performance was deficient’ and ‘that the deficient
performance prejudiced the defense.’” State v. Hare, 2015 UT
App 179, ¶ 17, 355 P.3d 1071 (quoting Strickland v. Washington,
466 U.S. 668, 687 (1984)).

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State v. Young

¶17 Young argues that his counsel should have sought the
suppression of evidence because Townsend detained—or at least
attempted to detain—Young without “a reasonable, articulable
suspicion that the person has committed or is about to commit a
crime.” See State v. Applegate, 2008 UT 63, ¶ 8, 194 P.3d 925
(citation and internal quotation marks omitted). However,
Townsend approached Young, who was sitting in his car, to
investigate a report of disorderly conduct involving a possibly
intoxicated person matching Young’s description. See
generally Utah Code Ann. § 76-9-102 (LexisNexis Supp. 2015)
(defining and prohibiting disorderly conduct). Shortly before
approaching Young, Townsend had personally observed Young
interacting with another officer regarding a different complaint
of disorderly conduct. Although the issue of reasonable
suspicion was not explored below, these circumstances likely
created reasonable suspicion that Young had committed the
crime of disorderly conduct or was about to commit the crime of
driving under the influence. Either belief, if reasonable, would
suffice to justify Townsend’s detention of Young to investigate.
See Applegate, 2008 UT 63, ¶¶ 8–9.

¶18 Even if Townsend did not initially have reasonable
suspicion to detain Young, Young’s subsequent illegal acts of
fleeing from Townsend and driving recklessly through the
parking lot provided an independent justification for the officers
to detain and arrest Young. This case is indistinguishable in key
respects from State v. Lorenzo, 2015 UT App 189, 358 P.3d 330,
wherein this court rejected a similar argument of ineffective
assistance of counsel. Id. ¶¶ 18–22. In Lorenzo, a police officer
detained the defendant, allegedly without reasonable suspicion,
after which the defendant “[led] police on a dangerous, high-
speed chase on the freeway and through residential and business
districts.” Id. ¶ 22. We affirmed the defendant’s resulting
convictions, which included reckless driving, explaining,

The legality of the initial stop . . . does not control
this issue. A prior illegality by officers does not

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State v. Young

affect the subsequent arrest of a defendant where
there is an intervening illegal act by the suspect.
Thus, notwithstanding a strong causal connection
in fact between lawless police conduct and a
defendant’s response, if the defendant’s response is
itself a new, distinct crime, then the police
constitutionally may arrest the defendant for that
crime. A contrary rule would virtually immunize a
defendant from prosecution for all crimes he might
commit that have a sufficient causal connection to
the police misconduct.

Id. ¶ 21 (citations and internal quotation marks omitted).

¶19 Here, as in Lorenzo, Young’s convictions “stemmed from
his actions after he fled the scene of the stop.” See id. ¶ 22.
Young’s reckless flight from Townsend justified his subsequent
arrest, regardless of any initial illegality, and Young has not
identified any inculpatory evidence obtained solely from his
detention by Townsend prior to his flight. For these reasons, a
motion to suppress based on a lack of reasonable suspicion
would have been futile. Young’s counsel did not perform
deficiently by failing to pursue such a motion. See Carr, 2014 UT
App 227, ¶ 19 (“[C]ounsel’s performance at trial is not deficient
if counsel refrains from making futile objections, motions, or
requests.” (citation and internal quotation marks omitted)).

¶20 Young also argues that his trial counsel provided him
with ineffective assistance by failing to seek to suppress
statements Young made after he was placed into police custody,
asserting that such statements were the product of custodial
interrogation in violation of Miranda v. Arizona, 384 U.S. 436
(1966). Leaving aside the question of whether the circumstances
of this case present a Miranda violation, Young cannot show
prejudice arising from his counsel’s failure to seek suppression
on Miranda grounds.

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State v. Young

¶21 “A defendant suffers prejudice when, absent the
deficiencies of counsel’s performance, there is a reasonable
likelihood that the defendant would have received a more
favorable result at trial.” State v. Hards, 2015 UT App 42, ¶ 18,
345 P.3d 769. Here, the only statements that Young alleges the
Miranda violation yielded are his admissions to the arresting
officers that he had been drinking and that he had consumed a
prescription anti-anxiety medication. These statements were
inculpatory on the issue of Young’s impairment, but there
existed ample additional evidence of Young’s impairment—
most notably, the breath test result indicating an alcohol
concentration of .114 grams. 3 Young has not demonstrated a
reasonable likelihood of a more favorable trial result if his
counsel would have sought to suppress Young’s statements, and
Young therefore cannot establish that his counsel rendered
ineffective assistance.

¶22 Sufficient evidence existed to support Young’s
convictions for failing to stop at the command of a law
enforcement officer and reckless driving. Young has also failed
to establish that he received ineffective assistance of counsel. We
therefore affirm Young’s convictions.

3. Young suggests that the field sobriety tests and breath test
were a direct result of his admission that he had consumed
alcohol. However, Townsend testified that he initiated his
intoxication investigation because of the smell of alcohol and
Young’s driving pattern.

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