State v. Hull

2017 UT App 233

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TRAVIS BRITTON HULL,
Appellant.

Opinion
No. 20151028-CA
Filed December 21, 2017

Second District Court, Farmington Department
The Honorable Michael G. Allphin
No. 151700631

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Travis Britton Hull appeals from his conviction
for burglary, charged as a second-degree felony. He argues that
his constitutional right to the effective assistance of counsel was
violated because his trial counsel failed to request an instruction
regarding a lesser included offense of criminal trespass. Because
a decision not to request such instruction was objectively
reasonable in this case, we conclude that Defendant has failed to
show that the assistance he received from counsel was
constitutionally ineffective. We therefore affirm.
State v. Hull

BACKGROUND

¶2 One morning, Defendant got out of a parked SUV and
approached a homeowner (Homeowner) as she walked up to her
house. He asked if Homeowner remembered him, introduced
himself as Travis, and said he had dated Homeowner’s daughter
in high school. Defendant inquired after Homeowner’s
daughter, before asking for a ride to a gas station because he had
run out of gas. Homeowner agreed to give him a lift, but stepped
inside her house first.

¶3 While this conversation was taking place, Homeowner’s
brother (Brother) had begun unloading supplies from his truck
for some remodeling work he was doing inside the house.
Homeowner told Brother that she was taking Defendant to the
gas station. As she left the house, she picked up a bag of trash
from the kitchen trashcan and took it outside to the garbage bin,
leaving the empty trashcan in the kitchen. Defendant retrieved a
portable gas can from his SUV, and he and Homeowner left for
the gas station.

¶4 Later, after Brother finished unloading his supplies, he
drove to the same gas station for breakfast. When Brother
arrived, Defendant came to Brother’s truck, opened the door,
and asked for a ride back to the house where his SUV was
parked. Brother drove Defendant to the house and dropped him
off. Brother then drove back to the gas station for breakfast.

¶5 While driving, Brother remembered that he had left the
front door to the house unlocked and became worried. After
picking up breakfast, he quickly returned to the house, arriving
five to ten minutes after he had dropped off Defendant there.
The SUV was still there, now with the motor running, but
Defendant was not in it. Brother went up to the house and found
the front door locked. He then spotted Defendant in the back
yard of the house, walking toward a neighboring property.

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State v. Hull

¶6 Brother confronted Defendant by saying to him, “You’ve
been in the house.” Defendant responded, “I wasn’t in the
house. You never saw me in the house. You can’t prove I was in
the house.” Brother said he was going to call the police, and
Defendant retreated to his SUV. Defendant drove away in
reverse—perhaps to conceal his license plate, which was affixed
only to the rear of the SUV.

¶7 Brother called the police and was able to provide a partial
license plate number to them. While he waited for officers to
arrive, he checked the back door of the house and found it
unlocked. Brother also noticed the kitchen trashcan sitting on the
back porch and inspected it. When Homeowner had left the
house, the trashcan was empty and in the kitchen. But now it
was on the back porch and contained a bag of chocolate covered
pretzels, a pack of frozen fish sticks, two pork chops, and an
iPad with its charger.

¶8 Homeowner returned to the house and confirmed that
these items had been inside the house when she left. She
remembered that the pretzels had been on the kitchen counter,
the fish sticks and pork chops had been in the freezer, and the
iPad and its charger had been on her dresser. She also noticed
that her iPod, which had been next to the iPad, was missing. The
iPod was not found.

¶9 Homeowner called her daughter and asked if the
daughter had dated anyone named Travis in high school. Her
daughter said she had dated a Travis Hull, and Homeowner
reported that name to the police. This information led to
Defendant’s arrest.

¶10 The State charged Defendant with burglary as a second-
degree felony and theft as a class B misdemeanor. Burglary is a
third-degree felony “unless it was committed in a dwelling, in
which event it is a second degree felony.” See Utah Code Ann.

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State v. Hull

§ 76-6-202(2) (LexisNexis 2012). The State’s theory was therefore
that Defendant had entered the house to steal the items.
Defendant’s trial counsel argued to the jury that Defendant had
never entered the house, noting that no one had seen Defendant
enter or exit the house and that no forensic evidence of his
presence had been found inside the house. Trial counsel also
noted the short time period between Defendant being dropped
off at the house and being confronted by Brother and suggested
that it was more likely that someone else had entered the house
to steal the items while Brother and Defendant were at, or en
route to or from, the gas station.

¶11 The jury convicted Defendant of burglary but acquitted
him of theft. But see infra ¶ 23 note 4 (noting an apparent error in
the minutes). Defendant appeals.

ISSUE AND STANDARD OF REVIEW

¶12 On appeal, Defendant contends that the jury should have
been instructed as to criminal trespass as a lesser included
offense of burglary. See generally State v. Baker, 671 P.2d 152,
159–60 (Utah 1983). Because Defendant did not raise this
contention at trial, he argues he received ineffective assistance of
counsel. See, e.g., State v. Kennedy, 2015 UT App 152, ¶¶ 22–23,
354 P.3d 775 (discussing the resolution of unpreserved claims
through the lens of ineffective assistance of counsel). Defendant
argues that trial counsel’s failure to request an instruction
regarding criminal trespass deprived him of his constitutional
right to the effective assistance of counsel. “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 (brackets, citation, and internal
quotation marks omitted).

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State v. Hull

ANALYSIS

¶13 To demonstrate ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient
and that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because both
deficient performance and resulting prejudice are requisite
elements for a claim of ineffective assistance of counsel, failure to
prove either element necessarily defeats the claim. Id. at 697;
State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769.

¶14 Defendant argues that trial counsel performed deficiently
by failing to request that the trial court instruct the jury
regarding criminal trespass. Defendant asserts that criminal
trespass is a lesser included offense of burglary. An offense is
lesser and included when “[i]t is established by proof of the
same or less than all the facts required to establish the
commission” of the greater offense charged, when it is an
inchoate form of the greater offense, or when it is “specifically
designated by a statute as a lesser included offense.” Utah Code
Ann. § 76-1-402(3) (LexisNexis 2012). Thus, a lesser included
offense exists when the defendant is charged with some greater
offense and conviction of that greater offense necessarily
requires finding that the defendant committed each and every
element of the lesser offense plus at least one other element
found in the greater offense. See, e.g., State v. Powell, 2007 UT 9,
¶ 25, 154 P.3d 788. We assume, for the purposes of this case, that
criminal trespass is a lesser included offense of the burglary
charged. 1

1. See, e.g., State v. Neeley, 748 P.2d 1091, 1095 (Utah 1988)
(treating criminal trespass as a lesser included offense of
burglary); State v. Baker, 671 P.2d 152, 159–60 (Utah 1983) (same);
State v. Quintana, 2004 UT App 418, ¶¶ 8–9, 103 P.3d 168
(accepting without analysis that criminal trespass was a lesser
(continued…)

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State v. Hull

¶15 A defendant is entitled to a jury instruction on a lesser
included offense, so long as “the evidence would permit a jury
rationally to find him guilty of the lesser offense and acquit him
of the greater.” Keeble v. United States, 412 U.S. 205, 208 (1973). 2
Thus, when there is a basis for a lesser-included-offense
instruction in the evidence, and the defense requests one be
given, the court must give the instruction. See id. at 208, 213.

(…continued)
included offense of burglary); State v. Peterson, 881 P.2d 965, 969
(Utah Ct. App. 1994) (same); Utah Code Ann. § 76-6-206 notes of
decisions (LexisNexis Supp. 2014). See generally 42 C.J.S.
Indictments § 336 (2017) (noting that “[o]ther included offenses
on a charge of burglary include . . . criminal trespass, at least
under certain circumstances”) (footnotes omitted)).

2. This is true even if, as here, the jury subsequently finds the
defendant guilty of the greater offense:
[I]t is no answer to petitioner’s demand for a jury
instruction on a lesser offense to argue that a
defendant may be better off without such an
instruction. True, if the prosecution has not
established beyond a reasonable doubt every
element of the offense charged, and if no lesser
offense instruction is offered, the jury must, as a
theoretical matter, return a verdict of acquittal. But
a defendant is entitled to a lesser offense
instruction—in this context or any other—precisely
because he should not be exposed to the
substantial risk that the jury’s practice will diverge
from theory. Where one of the elements of the
offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury
is likely to resolve its doubts in favor of conviction.
Keeble v. United States, 412 U.S. 205, 212–13 (1973).

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¶16 However, even when there is a basis for a lesser-included-
offense instruction, counsel can reasonably decide not to request
one. This is because, depending on the facts of a particular case,
counsel may have perfectly valid tactical reasons to forgo the
instruction and to instead present an “all or nothing” defense
that entails avoiding a lesser-included-offense instruction in the
hopes the jury will find the defendant “totally innocent of any
wrongdoing.” See State v. Dyer, 671 P.2d 142, 145 (Utah 1983); cf.
State v. Feldmiller, 2013 UT App 275, ¶¶ 3–4, 316 P.3d 991 (per
curiam) (holding that counsel did not perform deficiently by
forgoing a special mitigation instruction, because the “wide
latitude counsel is given in making strategic decisions”
encompasses “all or nothing” defenses that could lead “to a
complete acquittal”).

¶17 Because requesting a lesser-included-offense instruction is
within counsel’s strategic discretion, we must consider whether,
in the circumstances of this case, trial counsel could have
reasonably decided not to have the jury instructed regarding the
lesser included offense. Attorneys are afforded “wide latitude”
in making such decisions because “[e]ven the best criminal
defense attorneys would not defend a particular client in the
same way.” Strickland, 466 U.S. at 689. We will conclude that
counsel’s performance was deficient only if it can be said that no
objectively competent attorney would have adopted the
complained-of strategy. See id. at 690 (charging reviewing courts
with determining “whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance”).

¶18 Defendant argues that the State’s evidence of burglary
was so weak that the jury would not have convicted him of
burglary had it been given the option of convicting him of
criminal trespass instead. He notes that no forensic evidence of
his presence (e.g., his fingerprints or his personal items) was
found inside the house, that no one testified that he had been

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inside the house, and that the State conceded in its closing
argument that no one had seen him inside the house.

¶19 However, the very weaknesses Defendant identifies in the
State’s case reinforce the reasonableness of a decision to pursue
an “all or nothing” defense. While none of the witnesses testified
that they had seen Defendant inside the house, Brother did
testify that Defendant had been in the back yard of the house
and Homeowner confirmed that items she had left inside the
house were found in the trashcan on the back porch of the house.
As a result, trial counsel could reasonably have anticipated that
(1) the absence of direct or forensic evidence that Defendant had
been inside the house could very well lead to an acquittal on the
burglary charge while (2) Brother’s testimony that Defendant
had been in the back yard would likely lead to conviction on the
lesser included offense of criminal trespass. In other words, trial
counsel could reasonably have believed that the jury would
readily convict Defendant of criminal trespass even though the
case for burglary was weak. 3 Trial counsel could therefore have
reasonably decided to focus on the perceived weaknesses of the
evidence underlying the burglary charge. Indeed, trial counsel’s
closing argument focused on the lack of proof that Defendant
had been inside the house:

3. We employ the term “weak” not because we doubt the jury’s
verdict but because the evidence supporting a burglary charge
was relatively weaker than that which would have supported a
criminal-trespass charge. Specifically, a criminal-trespass charge
would have been supported by direct testimonial evidence while
the burglary charge was supported by circumstantial evidence.
Nevertheless, “it is a well-settled rule that circumstantial
evidence alone may be sufficient to establish the guilt of the
accused and direct evidence is not required to establish guilt.”
State v. Harris, 2015 UT App 282, ¶ 9, 363 P.3d 555 (brackets,
citations, and internal quotation marks omitted).

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State v. Hull

Based upon all the facts that I’ve mentioned to you,
there’s reasonable doubt as to the burglary because
the State has to prove beyond a reasonable doubt
that Mr. Hull entered or remained unlawfully
inside the house with intent to commit theft. If
either of those elements are lacking, his presence in
the house or the intent to commit a theft, then the
State’s failed to meet its burden, and you are
required by our law and our constitution, both of
our state and of the United States, to find my client,
Mr. Hull, not guilty.

¶20 We conclude that it was objectively reasonable for trial
counsel to forgo a lesser-included-offense instruction and to
instead present an “all or nothing” defense.

¶21 Because not requesting a lesser-included-offense
instruction was within the “wide range of professionally
competent assistance,” we conclude that trial counsel’s failure to
make such a request did not amount to deficient performance.
See Strickland, 466 U.S. at 690. And because both deficient
performance and resulting prejudice are requisite elements in a
successful ineffective-assistance-of-counsel claim, Defendant’s
failure to prove deficient performance necessarily defeats his
claim. Id. at 697; Hards, 2015 UT App 42, ¶ 18.

CONCLUSION

¶22 Defendant has not demonstrated that, under these
circumstances, it was outside the wide range of professionally
competent assistance to forgo a lesser-included-offense
instruction in the hopes of securing a complete acquittal. We
therefore conclude that trial counsel’s failure to request an
instruction regarding the lesser included offense did not violate

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Defendant’s constitutional right to the effective assistance of
counsel.

¶23 Affirmed. 4

4. We note a discrepancy in the record. According to the verdict
form filled out by the jury’s foreperson, the jury convicted
Defendant of burglary and acquitted him of theft. The eight-
person jury was polled, and each juror confirmed that the
verdict form accurately reflected the verdict. At the sentencing
hearing, the court rejected a request for restitution for the
missing iPod, noting that no theft conviction had been entered.
And the State conceded, “He was acquitted on that charge, and I
don’t think we can ask for [restitution].” However, according to
the minutes memorializing the sentencing hearing, Defendant
was convicted of both charges, Defendant was sentenced for
both charges, and the sentences for the two charges were
ordered to run concurrently. The minutes further reflect that
Defendant was fined $10,000 for each charge, with the bulk of
the two fines suspended.
On appeal, Defendant refers to the minutes in a footnote,
stating that they are “subject to correction pursuant to clerical
error.” See generally Utah R. Crim. P. 30(b). And the State
concedes that the minutes “appear[] to be a clerical error.”
Nevertheless, the error has not been corrected; during the
pendency of this appeal, new probation documents containing
and perpetuating the theft-conviction error have been added to
the record.
Defendant does not ask this court to order any relief
regarding the apparently erroneous minutes, and we therefore
do not do so. We note, however, that Defendant is free to move
for such relief in the district court.

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