State v. Fleming

2019 UT App 181
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
C ARL S TANLEY F LEMING,
Appellant.
Opinion
No. 20170251-CA
Filed November 15, 2019
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 161901973
Cherise Bacalski and Emily Adams, Attorneys
for Appellant
Sean D. Reyes and Thomas Brunker, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 	During a search incident to arrest, police officers found
Carl Stanley Fleming in possession of drug paraphernalia and
cocaine. Later, Fleming tried to explain away his possession of
the cocaine by saying he was unaware that it was in a jacket that
he alleged he had borrowed from his girlfriend. This explanation
was a disconnect, however, because the arresting officer had
found the cocaine in the front pocket of Fleming’s pants. At trial,
Fleming’s 	counsel 	(Counsel) 	told 	the 	jury 	it 	would 	hear
Fleming’s account, but Fleming did not testify when Counsel
became concerned that Fleming’s three prior drug convictions
might come in. The jury found Fleming guilty. Fleming appeals,
claiming Counsel was ineffective in a couple of ways. We affirm.

State v. Fleming
20170251-CA 	2 	2019 UT App 181
BACKGROUND1
¶2 	While checking a park for trespassers, officers came upon
Fleming, asked him to identify himself, and then arrested him
based on an active arrest warrant. In the search incident to
arrest, an officer found a black case containing two pipes and
some Brillo pads2 in Fleming’s jacket pocket and a pill bottle
with a hard, white substance in Fleming’s front pants pocket.
The officer asked Fleming what the substance was, and Fleming
responded that “it might be meth or it might be a rock,”3 but he
hadn’t had a chance to try it yet. The substance later proved to
be cocaine. The State charged Fleming with possession of a
controlled substance with prior convictions.
¶3 	At 	a 	suppression 	hearing, 	Fleming 	testified 	that 	the
cocaine was in his girlfriend’s jacket that he was wearing, not in
his pants pocket. He further explained that he was wearing his
girlfriend’s jacket in addition to his own coat, and that he was
unaware the cocaine was in her jacket. After the hearing, the
State filed a notice that if Fleming so testified at trial, the State
would present Fleming’s three prior drug-related convictions for
the 	purpose 	of 	rebutting 	his 	lack-of-knowledge 	or 	mistake
argument as to possessing the cocaine. See Utah R. Evid. 404(b).
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. Maese, 2010 UT App 106, ¶ 2 n.2, 236 P.3d 155.
2. An officer testified that drug users often use a Brillo pad by
tearing off a piece of it and inserting it into their pipe to reduce
the heat of the drugs they smoke.
3. The term rock is “street slang for a unit of crack cocaine.” State
v. Jeffries, 2009 UT 57, ¶ 2, 217 P.3d 265.

State v. Fleming
20170251-CA 	3 	2019 UT App 181
¶4 	At trial, Counsel told the jury in his opening statement
that it would hear Fleming’s account of the arrest, specifically
that the cocaine was found in his girlfriend’s jacket that he
happened to be wearing, not his pants pocket, and that he did
not know the drugs were there. During its case-in-chief, the State
presented the arresting officer’s testimony that the cocaine was
found in Fleming’s front pants pocket. Counsel then sought a
ruling 	on 	whether 	Fleming’s 	prior 	convictions 	would 	be
admissible if Fleming testified, but the trial court declined to rule
in advance, reasoning that admissibility would turn on the
content 	of 	Fleming’s 	testimony. 	Counsel 	ultimately 	advised
Fleming not to testify.4
¶5 	In closing argument, Counsel focused on four principal
points. First, Counsel argued that if Fleming had known about
the cocaine, he would have disposed of it because he had ample
opportunity to do so before being detained. Second, Counsel
asserted that Fleming did not know about the cocaine because it
would make no sense that Fleming would admit that he had the
drug paraphernalia and not admit that he had the cocaine. Third,
Counsel focused on Fleming’s answer to the arresting officer that
the cocaine “might be meth or it might be a rock,” arguing that
someone who knew he had drugs would know what they are.
Finally, Counsel focused on discrediting the arresting officer’s
testimony. Counsel specifically argued that the arresting officer’s
testimony conflicted with another officer’s testimony regarding
whether a pastor, who was standing by Fleming during the
arrest, drove off in a car and had to be brought back to the scene.
This 	conflict, 	Counsel 	argued, 	sufficiently 	undermined 	the
arresting officer’s testimony such that the jury should disbelieve
him completely. However, this final argument was based on a
4. Out of the jury’s presence, the trial court confirmed, on the
record, that Fleming was knowingly and intentionally waiving
his right to testify.

State v. Fleming
20170251-CA 	4 	2019 UT App 181
misunderstanding of the testimony, and the State clarified in its
rebuttal argument that the arresting officer never testified that
the pastor left, only that the pastor got into his car.
¶6 	The jury convicted Fleming as charged, and he appeals.
ISSUE AND STANDARD OF REVIEW
¶7 	The sole issue Fleming raises is whether he received
constitutionally ineffective assistance of counsel. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d
344 (cleaned up).
ANALYSIS
¶8 	Fleming first argues that Counsel’s advice not to testify
amounted to ineffective assistance. Fleming then asserts that
Counsel’s 	argument 	in 	closing 	that 	Counsel 	based 	on 	his
misunderstanding 	of 	the 	testimony 	was 	also 	ineffective
assistance. We conclude that Fleming has not demonstrated that
Counsel rendered ineffective assistance in either respect.
¶9 	To prevail on an ineffective assistance of counsel claim, a
defendant must meet the two-prong Strickland test: (1) counsel’s
performance 	was 	objectively 	deficient 	and 	(2) 	the 	deficient
performance resulted in prejudice. Strickland v. Washington, 466
U.S. 668, 687–88 (1984); State v. Wilder, 2018 UT 17, ¶ 17, 420 P.3d
1064. “Because both prongs of the Strickland test must be met to
establish ineffective assistance of counsel, we need not always
address both prongs.” State v. Goode, 2012 UT App 285, ¶ 7 n.2,
288 P.3d 306; accord Menzies v. State, 2014 UT 40, ¶ 78, 344 P.3d
581. Accordingly, we address only the deficient-performance
prong as to Fleming’s first claim and only the prejudice prong as
to Fleming’s second claim.

State v. Fleming
20170251-CA 	5 	2019 UT App 181
I. Counsel’s Advice Not to Testify
¶10 	Counsel’s performance was not deficient when he advised
Fleming not to testify. “Performance is deficient under Strickland
only when no competent attorney would have so acted.” State v.
Coombs, 2019 UT App 7, ¶ 20, 438 P.3d 967 (cleaned up). A
defendant “must overcome the strong presumption that [the
defendant’s] 	trial 	counsel 	rendered 	adequate 	assistance 	by
persuading the court that there was no conceivable tactical basis
for counsel’s actions.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(cleaned up); see also Strickland v. Washington, 466 U.S. 668, 689
(1984) 	(“A 	court 	must 	indulge 	a 	strong 	presumption 	that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption 	that, 	under 	the 	circumstances, 	the 	challenged
action might be considered sound trial strategy.” (cleaned up)).
¶11 	Fleming argues that Counsel’s advice not to testify was
objectively 	unreasonable 	and 	unsound 	trial 	strategy. 	We
disagree. Counsel’s advice was reasonably calculated to prevent
the 	jury 	from 	hearing 	about 	Fleming’s 	three 	prior 	drug
convictions. 	The 	crux 	of 	the 	trial 	was 	whether 	Fleming
knowingly possessed the cocaine. If Fleming had testified, his
three 	prior 	drug 	convictions 	may 	have 	been 	admitted 	into
evidence under rule 404(b), rule 609, or potentially another
evidentiary avenue under the Utah Rules of Evidence. Then,
having learned of his three prior drug convictions, the jury may
have been less likely to believe Fleming’s argument that he
unknowingly 	possessed 	the 	cocaine 	in 	this 	instance. 	Thus,
having been unsuccessful in persuading the trial court to tip its
hand as to how it would rule on the admissibility of Fleming’s
prior convictions, Counsel’s advice for Fleming not to testify was
reasonable. See State v. Gilbert, 2005 UT App 432U, para. 3
(holding that the advice for the defendant not to testify was
“sound trial strategy” because it shielded the defendant “from

State v. Fleming
20170251-CA 	6 	2019 UT App 181
the 	possibility 	of 	prejudicial 	impeachment 	with 	his 	prior
convictions”).
¶12 	We 	view 	Counsel’s 	trial 	decision 	as 	a 	quintessential
question of judgment and strategy. We easily could imagine this
appeal being before us under the alternative scenario in which
Counsel instead had advised Fleming to testify. See, e.g., State v.
Hards, 	2015 	UT 	App 	42, 	¶ 	22, 	345 	P.3d 	769 	(denying 	an
ineffective assistance of counsel claim when counsel advised the
defendant 	to 	testify). 	Had 	the 	prior 	convictions 	come 	into
evidence, Fleming could have just as easily claimed that advising
him to testify was ineffective assistance. This type of dilemma
exemplifies why we presume effective assistance and search the
record 	for 	any 	conceivable 	tactical 	basis 	for 	trial 	counsel’s
decision. See Strickland, 466 U.S. at 689 (“A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight . . . .”); see also Honie
v. 	State, 	2014 	UT 	19, 	¶ 	32, 342 	P.3d 	182 	(“Because 	of 	the
temptation to second-guess trial counsel’s decisions with the
benefit of hindsight, judicial scrutiny of counsel’s performance
must be highly deferential . . . .” (cleaned up)). In short, we
conclude 	that 	Counsel’s 	advice 	against 	testifying 	was 	not
deficient 	performance, 	and 	therefore 	Fleming’s 	ineffective
assistance claim in this regard fails.
II. Counsel’s Closing Argument
¶13 	Counsel’s 	argument 	in 	closing, 	based 	on 	his
misunderstanding of the testimony, did not prejudice Fleming.
“To 	show prejudice 	in 	the 	ineffective 	assistance 	of 	counsel
context, the defendant bears the burden of proving . . . that there
is a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different.” State v.
Beverly, 2018 UT 60, ¶ 30, 435 P.3d 160 (cleaned up). It is
insufficient to show “some conceivable effect on the outcome of
the proceeding”; rather, “the likelihood of a different result must

State v. Fleming
20170251-CA 	7 	2019 UT App 181
be substantial.” Menzies v. State, 2014 UT 40, ¶ 91, 344 P.3d 581
(cleaned up). “There is a reasonable probability that . . . the
result of the proceeding would have been different” when a
court’s “confidence in the outcome” of the trial is undermined.
Strickland v. Washington, 466 U.S. 668, 694 (1984) (cleaned up).
¶14 	Fleming argues that Counsel prejudiced him by asking
the 	jury 	to 	acquit 	him, 	in 	part, 	based 	on 	Counsel’s
misunderstanding of the testimony. However, this argument is
unpersuasive. 	Three 	of 	Counsel’s 	four 	main 	arguments 	in
closing were correctly based on the evidence and addressed
whether Fleming knowingly possessed the cocaine. In particular,
Counsel pointed out that Fleming had an opportunity to dispose
of the cocaine but didn’t. Counsel also highlighted that Fleming
admitted to possessing the drug paraphernalia but not the
cocaine. And Counsel argued that if Fleming knew he possessed
the cocaine, he would not have said that “it might be meth or it
might 	be 	a 	rock.” 	These 	circumstances, 	Counsel 	argued,
supported the conclusion that Fleming did not know about the
cocaine. 	Thus, 	Counsel 	defended 	Fleming 	with 	multiple
arguments based on a correct understanding of the evidence.
¶15 	The exact whereabouts of the pastor, a mere bystander,
were not critical to the evidentiary picture in this case. Thus,
even though Counsel misunderstood this single bit of evidence
in 	closing 	argument, 	we 	are 	unpersuaded 	that 	there 	is 	a
reasonable likelihood of a different outcome of Fleming’s trial
without this argument. Indeed, in the absence of Counsel’s
misunderstanding, the jury would have still heard Counsel’s
other arguments and would have still had the same evidence
before 	it. 	Moreover, 	even 	if 	Counsel’s 	recollection 	of 	the
evidence 	were 	correct, 	it 	is not 	likely 	that 	the jury 	would
have discredited every other aspect of the officer’s testimony
simply due to such a minor mistake. By that same token, it
is 	also 	unlikely 	that 	the 	jury 	would 	have 	disregarded
everything else Counsel had to say simply because of his flawed

State v. Fleming
20170251-CA 	8 	2019 UT App 181
misunderstanding on this point. Therefore, the part of Counsel’s
closing argument that was based on his misunderstanding of the
evidence did not prejudice Fleming, and Fleming’s ineffective
assistance claim in this regard fails.
CONCLUSION
¶16 	We 	conclude 	that 	Fleming’s 	ineffective 	assistance 	of
counsel claims fail because Counsel’s advice not to testify was
not deficient, and Counsel’s argument in closing based on a
misunderstanding of the testimony did not prejudice Fleming.
Affirmed.