State v. Parkinson

2018 UT App 62
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ICHAEL R OY PARKINSON ,
Appellant.
Opinion
No. 20160237-CA
Filed April 12, 2018
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 151902837
David M. Corbett, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which JUDGES
DAVID N. M ORTENSEN and R YAN M. HARRIS concurred.
ORME, Judge:
¶1 	Defendant Michael Roy Parkinson appeals his convictions
for assault against a police officer and failing to respond to an
officer’s 	command 	to 	stop. 	Defendant 	argues 	that 	his 	trial
counsel provided ineffective assistance by proposing erroneous
jury instructions. Because Defendant has not demonstrated that
any such errors were prejudicial, we affirm his convictions.
¶2 	Two Murray City detectives, driving in unmarked police
vehicles, initiated a traffic stop after Defendant followed the car
in front of him too closely and failed to use his turn signal for at

State v. Parkinson
20160237-CA 	2 	2018 UT App 62
least two seconds before changing lanes.1 Responding to the
emergency 	lights 	and 	siren 	of 	the 	first 	detective’s 	vehicle,
Defendant 	pulled 	over. 	The 	first 	detective 	approached 	the
driver’s side of Defendant’s vehicle while the second detective
positioned himself at the passenger side. Both detectives were
dressed in plain clothes, but the second detective had a badge
visibly hanging from his neck on a lanyard. The first detective
explained why they pulled Defendant over and asked Defendant
for 	his 	license, 	registration, 	and 	proof 	of 	insurance, 	which
Defendant immediately provided.
¶3 	While the first detective returned to his vehicle to check
Defendant’s license, a sergeant arrived at the scene, also in plain
clothes and wearing his badge on a lanyard around his neck. The
sergeant 	had 	called 	Defendant’s 	parole 	officer, 	leaving 	a
message that officers intended to search Defendant’s vehicle.
When he informed Defendant of his intent to search the vehicle
pursuant to Defendant’s parole agreement, Defendant disagreed
with the officers on whether they had the authority to do so,
insisting that only his parole officer could conduct the search.
The sergeant then attempted to coax Defendant out of the
vehicle, to no avail. During the coaxing, Defendant asked the
sergeant, “[W]ho are you, like what’s your name?” Defendant
testified at trial that the sergeant told him his name and that he
worked for Murray City Police.
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal
quotation 	marks 	omitted). 	Defendant’s 	version 	of 	what
happened during the traffic stop differs in several respects from
the facts as viewed in the light most consistent with the jury’s
verdict, but “[w]e present conflicting evidence only as necessary
to understand issues raised on appeal.” Id.

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20160237-CA 	3 	2018 UT App 62
¶4 	During the sergeant’s attempts to get Defendant to exit
his vehicle, Defendant repeatedly revved the engine and reached
for the gearshift knob. In a final attempt to get Defendant to exit
the vehicle, the sergeant placed his hands on Defendant’s left
hand and shoulder. The first detective returned to Defendant’s
vehicle and reached over to try and turn off the ignition, but
Defendant put the car into drive and “accelerated at a high rate
of speed,” causing the first detective to grab hold of the steering
wheel, forcing the car toward the curb. The driver’s side door
shut on the sergeant and the first detective, causing them to be
dragged along the road. The officers yelled for Defendant to
stop, but Defendant continued driving until he went up and
over the curb. Dislodged from the car due to the impact with the
curb, the first detective’s ankle hit the curb and his chest hit the
rear door of the vehicle, and both the sergeant and the first
detective fell under the vehicle.
¶5 	Defendant drove away from the scene. He left his car in a
nearby parking lot and departed on foot. He did not call 911 to
report that he had been accosted by persons of questionable
legitimacy. Instead, he made his way to a friend’s house and
stayed there for a few days. He was arrested at his home four
days after the incident and charged with two counts of assault
on a peace officer, a second degree felony, see Utah Code Ann.
§ 76-5-102.4(4) (LexisNexis 2017), and one count of failure to
respond to an officer’s signal to stop, a third degree felony, see id.
§ 41-6a-210(1)(b)(i) (2014).
¶6 	At trial, Defendant’s counsel proposed jury instructions
on the elements of both crimes. The proposed assault instruction
failed to include the statutory element that Defendant acted
“with knowledge that the person is a peace officer.” Id. § 76-5-
102.4(2)(a) (2017). Likewise, Defendant’s proposed failure-to-
respond-to-officer’s-signal instruction did not include the mens
rea requirements that Defendant “knowingly received a visual
or 	audible 	sign 	from 	a 	police 	officer” 	and 	that 	Defendant

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20160237-CA 	4 	2018 UT App 62
“intended to flee or elude a peace officer.” State v. Bird, 2015 UT
7, ¶¶ 26‒27, 345 P.3d 1141 (internal quotation marks omitted)
(explaining that these are the mens rea requirements for a
violation of Utah Code section 41-6a-210). The State did not
point out that either of these instructions was incomplete, and
the district court apparently did not notice their deficiency.
A jury convicted Defendant on all counts. Defendant appeals.
¶7 	Citing State v. Garcia, 2016 UT App 59, 370 P.3d 970, rev’d,
2017 UT 53, Defendant’s primary argument is that “[f]ailing to
provide an accurate instruction upon the basic elements of an
offense requires reversal.” See id. ¶ 23. This is a claim that we
cannot consider on its own terms because the error was not
brought to the attention of the district court and was therefore
not preserved for appeal. On the contrary, it was an error invited
by Defendant’s trial counsel, who submitted the instruction, and
we will ordinarily not review invited errors. See, e.g., State v.
Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (precluding appellate
review of an invited error to deter “parties from intentionally
misleading the trial court so as to preserve a hidden ground for
reversal 	on 	appeal”) 	(citation 	and 	internal 	quotation 	marks
omitted).
¶8 	But 	we 	can 	consider 	the 	matter 	as 	it 	is 	framed 	by
Defendant’s appellate counsel, in the context of an ineffective
assistance of counsel claim. See State v. Johnson, 2017 UT 76, ¶ 22.2
“While such a claim necessarily requires the court to look at the
2. Defendant’s appellate counsel astutely perceived the problems
with 	the 	deficient 	jury 	instructions 	and 	has 	briefed 	the
appeal thoroughly and effectively. But Defendant is dissatisfied
with 	appellate 	counsel’s 	performance 	and 	has 	filed 	several
motions seeking the appointment of new counsel. We are at a
loss to understand Defendant’s dissatisfaction, and we deny
Defendant’s latest motion for the appointment of new counsel.

State v. Parkinson
20160237-CA 	5 	2018 UT App 62
substantive issue the defendant argues his counsel should have
raised, and whether the substantive issue had any merit, the
substantive issue is only viewed through the lens of counsel’s
performance.” 	Id. 	We 	therefore 	consider 	only 	the 	issue 	of
whether 	Defendant’s 	trial 	counsel 	provided 	constitutionally
ineffective assistance by proposing jury instructions that failed to
include the culpable mental state required for an assault of a
peace officer and failure to stop or respond to an officer’s
command. “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).
¶9 	To prevail on an ineffective assistance of counsel claim,
Defendant “must show: (1) that counsel’s performance was
objectively deficient, and (2) a reasonable probability exists that
but for the deficient conduct defendant would have obtained a
more 	favorable 	outcome.” 	State 	v. 	Clark, 	2004 	UT 	25, 	¶ 	6,
89 P.3d 162. But we “need not determine whether counsel’s
performance 	was 	deficient 	before 	examining 	the 	prejudice
suffered by the defendant as a result of the alleged deficiencies.”
Strickland 	v. 	Washington, 	466 	U.S. 	668, 	697 	(1984). 	On 	the
contrary, 	we 	can 	consider 	prejudice 	first. 	And 	because
Defendant cannot demonstrate prejudice, as we discuss below,
we 	need 	not 	reach 	the 	issue 	of 	whether 	trial 	counsel’s
performance was objectively deficient, although we note that the
State essentially concedes that it was.
¶10 	Defendant argues that failure to provide an accurate
instruction on the basic elements of a crime cannot be harmless
error and invariably requires reversal. We recognize that there
are 	a 	number 	of 	cases, 	outside 	the 	ineffective-assistance-of-
counsel context, presuming that such an error “can never be
harmless” and constitutes clear error, requiring reversal. See

State v. Parkinson
20160237-CA 	6 	2018 UT App 62
State v. Jones, 823 P.2d 1059, 1061 (Utah 1991). Accord American
Fork v. Carr, 970 P.2d 717, 720 (Utah Ct. App. 1998); State v.
Stringham, 957 P.2d 602, 608 (Utah Ct. App. 1998); State v. Souza,
846 P.2d 1313, 1320 (Utah Ct. App. 1993).
¶11 	Our decision in State v. Liti, 2015 UT App 186, 355 P.3d
1078, was one of the first in Utah to suggest that this rule does
not hold true in the ineffective assistance of counsel context. Id.
¶¶ 21‒23. In Liti, the defendant argued that his trial counsel
provided 	ineffective 	assistance 	by 	failing 	to 	object 	to 	an
erroneous jury instruction. Id. ¶ 10. We recognized that to “merit
reversal of his conviction, [the defendant] must . . . demonstrate
that his defense 	was prejudiced 	by trial 	counsel’s deficient
performance—that there is a reasonable probability of a more
favorable result absent the error.” Id. ¶ 21. And any uncertainty
regarding the prejudice standard for erroneous jury instructions
raised under a claim of ineffective assistance of counsel was
conclusively put to rest by the Utah Supreme Court in State v.
Garcia, 2017 UT 53, when it made clear that “it is the defendant’s
burden 	to 	show 	that 	he 	was 	prejudiced 	by 	his 	counsel’s
performance.” 	Id. 	¶¶ 	37‒38. 	As 	the 	Court 	explained, 	any
suggestion that “a defendant need not show she was prejudiced
by an erroneous jury instruction resulting from her counsel’s
ineffective assistance” is “inconsistent with federal precedent.”
Id. ¶ 40. Prejudice is therefore “not shown automatically” nor is
it presumed in jury instruction errors attributable to counsel’s
deficient performance. Id. ¶ 36 (citing Weaver v. Massachusetts,
137 S. Ct. 1899, 1911 (2017)).
¶12 	Instead, the burden is on the defendant to demonstrate
that “there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.”
Strickland, 466 U.S. at 695 (emphasis added). But “[i]t is not
enough to show that the errors had some conceivable effect on
the outcome of the proceeding. Counsel’s errors must be so
serious as to deprive the defendant of a fair trial, a trial whose

State v. Parkinson
20160237-CA 	7 	2018 UT App 62
result is reliable.” Harrington v. Richter, 562 U.S. 86, 104 (2011)
(citations 	and 	internal 	quotation 	marks 	omitted). 	The 	high
standard for prejudice therefore requires that the possibility of a
different outcome “be substantial, not just conceivable.” Id. at
112. We therefore “must ‘consider the totality of the evidence
before the judge or jury’ and then ‘ask if the defendant has met
the 	burden 	of 	showing 	that 	the 	decision 	reached 	would
reasonably likely have been different absent the errors.’” Garcia,
2017 UT 53, ¶ 42 (quoting Strickland, 466 U.S. at 695‒96).
¶13 	The State was required to prove at trial that Defendant
had “knowledge” that the officers were police officers and that
he “knowingly received” a signal to stop from a police officer.
See State v. Bird, 2015 UT 7, ¶¶ 20, 26, 345 P.3d 1141 (outlining
the mens rea elements applicable to section 41-6a-210). Relying
on his own testimony at trial, Defendant argues that he did not
know 	the 	officers 	were 	police 	officers 	because 	they 	never
identified themselves as such, their badges were not visible, they
were dressed in plain clothes, and the stop lasted longer than
normal. But for two main reasons, the evidence as a whole
demonstrates the unlikelihood that the jury would have had a
reasonable doubt as to whether Defendant knew the three men
were police officers under all the circumstances.3 See Utah Code
3. Defendant argues that there is evidence 	of a reasonable
probability of a different outcome because the district court
believed there was sufficient evidence to justify submitting a
self-defense instruction to the jury. The court’s decision to give
this instruction rested on Defendant’s testimony that “he had
serious questions about whether [the men] were police officers.”
But the Utah Supreme Court stated in State v. Garcia, 2017 UT 53,
that the standard for entitlement to a jury instruction “is in no
way 	synonymous” 	with 	Strickland’s 	reasonable 	probability
requirements. 	Id. 	¶ 	44. 	The 	“requirement 	of 	a 	‘reasonable
probability’ of a different outcome is a relatively high hurdle to
(continued…)

State v. Parkinson
20160237-CA 	8 	2018 UT App 62
Ann. § 76-2-103(2) (LexisNexis 2017) (providing that “[a] person
engages in conduct . . . [k]nowingly, or with knowledge, with
respect to his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct or the
existing circumstances”).
¶14 	First, Defendant testified that he pulled over because he
saw emergency lights activated in the vehicle behind him. And
when 	asked 	for 	his 	license, 	registration, 	and 	insurance, 	he
produced 	his 	documentation 	without 	question 	because 	he
believed he was being given a ticket for a traffic violation.
Although Defendant challenges the testimony of the officers that
they were wearing badges and had identified themselves upon
approaching Defendant in his vehicle, Defendant testified that
he specifically asked the sergeant who he was and that the
sergeant replied that he was with Murray City Police. And the
sergeant told Defendant that, following consultation with his
parole officer, whom the sergeant named, Defendant’s vehicle
would 	be 	searched 	pursuant 	to 	his 	parole 	agreement—
(…continued)
overcome” compared to the lower hurdle a defendant must clear
to have an instruction submitted to the jury upon request, which
is “any reasonable basis in the evidence.” Id. (citation and
internal quotation marks omitted). See also State v. Torres, 619
P.2d 694, 695 (Utah 1980) (stating that a defendant is “entitled to
have the jury instructed on the law applicable to [his] theory of
the case if there is any reasonable basis in the evidence to justify
it”). 	Although 	the 	district 	court 	allowed 	the 	self-defense
instruction, this is of limited relevance for us, given the lower
standard applicable to giving jury instructions when requested.
We instead look beyond Defendant’s testimony to the totality of
the evidence to determine 	whether there was a substantial
likelihood 	of 	a 	different 	outcome 	had 	a 	proper 	elements
instruction been given.

State v. Parkinson
20160237-CA 	9 	2018 UT App 62
Defendant’s parole status and the name of his parole officer
being the type of information that would be available to law
enforcement officers but not to random mischief makers.
¶15 	Second, 	Defendant’s 	behavior 	after 	fleeing 	the 	scene
indicates that he knew he had been stopped by police officers.
Defendant did not return home for four days, and during this
time, he made no effort to report the incident and complain that
he had been stopped by vigilantes, pranksters, or imposters
posing as police officers.
¶16 	It is exceedingly unlikely that based on the evidence
before it, a properly instructed jury would have reasonably
doubted whether Defendant knew that the two detectives and
their 	sergeant 	were 	police 	officers. 	Because 	there 	is 	not 	a
substantial 	possibility 	that 	a 	different 	verdict 	would 	have
resulted from jury instructions containing the necessary mental
states for each count, we conclude that Defendant did not suffer
any prejudice as a result of the challenged jury instructions. His
ineffective 	assistance 	of 	counsel 	challenges 	are, 	therefore,
unavailing.
¶17 	Affirmed.