State v. Hull

2017 UT App 233
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
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 M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES D AVID N. M ORTENSEN and R YAN 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
20151028-CA 	2 	2017 UT App 233
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.

State v. Hull
20151028-CA 	3 	2017 UT App 233
¶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.

State v. Hull
20151028-CA 	4 	2017 UT App 233
§ 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).

State v. Hull
20151028-CA 	5 	2017 UT App 233
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…)

State v. Hull
20151028-CA 	6 	2017 UT App 233
¶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).

State v. Hull
20151028-CA 	7 	2017 UT App 233
¶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

State v. Hull
20151028-CA 	8 	2017 UT App 233
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).

State v. Hull
20151028-CA 	9 	2017 UT App 233
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

State v. Hull
20151028-CA 	10 	2017 UT App 233
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.