State v. Higley

2020 UT App 45

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
GREGORY SCOTT HIGLEY,
Appellant.

Opinion
No. 20190041-CA
Filed March 26, 2020

Fourth District Court, Provo Department
The Honorable Thomas Low
No. 185400100

Emily Adams and Cherise Bacalski, Attorneys
for Appellant
David O. Leavitt, Charlotte Howard, and Jeff
Buhman, Attorneys for Appellee

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

APPLEBY, Judge:

¶1 Gregory Scott Higley appeals his conviction for driving
under the influence (DUI), alleging his trial counsel provided
ineffective assistance and that the district court erred when it
denied his motion to instruct the jury on reckless driving. He
also moves for a remand to supplement the record under rule
23B of the Utah Rules of Appellate Procedure, claiming his trial
counsel provided ineffective assistance with regard to his
convictions for possession of heroin and possession of drug
paraphernalia. We affirm his DUI conviction and deny his rule
23B motion.
State v. Higley

BACKGROUND 1

¶2 One evening, around midnight, a driver of a passing
vehicle noticed a vehicle stopped in a left-turn lane and
extending slightly into an intersection. The vehicle’s engine was
running and Higley was in the driver seat, slumped over and
sleeping. The car’s window was open. The driver called out and
honked his horn, but Higley did not respond. The driver then
telephoned the police.

¶3 When an officer (Officer One) arrived, he found the keys
in the ignition and noticed that the vehicle’s engine was running.
He also discovered that the vehicle, which had a manual
transmission, was in neutral without the emergency brake
engaged. Officer One approached the vehicle and jostled
Higley’s arm to wake him. Officer One described Higley as
“drowsy” and “out of it . . . just spaced out.” Higley told Officer
One that he wanted to smoke a cigarette and “made a movement
with his hand toward . . . the center console,” but Officer One
would not let him. Officer One called for backup, and other
officers (Officers Two, Three, and Four) arrived.

¶4 The officers asked Higley if he had taken any medications
or consumed alcohol; Higley responded, “no,” but then said he
was prescribed alprazolam (Xanax) for treatment of several
conditions. Officer Two administered field sobriety tests (FSTs)
to Higley. Officer Two testified that FSTs are used “to determine
impairment . . . if [the person] should be driving or not.” He also
noted that people are expected to multitask during the FSTs
“because when you’re driving a car, . . . you have to multitask. If
you’re not able to do these instructions and follow them . . . , you
probably shouldn’t be driving.”

1. On appeal from a jury verdict, “[w]e recite the facts in the light
most favorable to the verdict, presenting conflicting evidence
only as necessary to understand the issues on appeal.” State v.
Salgado, 2018 UT App 139, n.1, 427 P.3d 1228.

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State v. Higley

¶5 Two of the three FSTs required Higley to use his balance;
he failed both of those tests. For the walk-and-turn test,
Higley was instructed to take nine heel-to-toe steps in one
direction, turn, and take another nine similar steps in the
opposite direction. But he took eighteen steps in one direction,
twenty-two in the other, “struggl[ed] with his balance,” and
grabbed at a nearby fence to stay upright. When Officer Two
told Higley to balance on one leg and count out loud to thirty,
Higley informed him that he had injured both of his ankles years
ago and asked if he could “pop” his ankles before beginning,
which the officer allowed. Higley then “stumbl[ed] the whole
time” and “could barely keep his foot up for more than a
second.” Higley was then given a field breathalyzer test, which
registered no alcohol on his breath. But because of the
surrounding circumstances—including the location of Higley’s
vehicle, that he was found slumped over sleeping in the driver
seat, that he was unable to follow the officers’ instructions, and
his failure of two of the three FSTs—Officer Two placed Higley
under arrest.

¶6 After Higley was arrested, Officer Three searched his
vehicle and, in the center console, found a Natural American
Spirit cigarette box with heroin inside. Officer Three testified
that when he confronted Higley about the heroin, Higley
responded “the car belonged to his mother and [the drugs were]
probably his mom’s,” although at the beginning of their
encounter, Higley told Officer One he was the vehicle’s
registered owner. Officer Three also testified that the
Natural American Spirit cigarette box was “[t]he only box”
found in the vehicle. Officer Two booked the cigarette box and
heroin into evidence. At the police station, Higley was given a
blood test, which registered Xanax but no other substances in his
system.

¶7 The State charged Higley with, among other things,
possession of heroin, possession of drug paraphernalia, and
DUI. At trial, the State’s toxicologist testified that the amount of
Xanax in Higley’s system was consistent with clinical use and

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State v. Higley

did not indicate abuse of the drug. But the toxicologist also said
the effects of the drug, such as “dizziness, disorientation,
drowsiness, [and] slurred speech,” could be present even when
it is taken within the clinical range.

¶8 Higley’s physician testified that he had been prescribing
Xanax to Higley to treat various conditions for approximately six
years. Higley testified in his defense and explained that he broke
both of his ankles years ago and they had not healed properly.
Because of this, Higley said, he is in constant pain and his “gait[]
[is] off.”

¶9 Higley explained that, on the day of his arrest, he took
two doses of Xanax, one at approximately 1:00 p.m. and the
other at approximately 9:00 p.m. He said he ran errands all day
and at the end of the day, as he was leaving a store, he
encountered a man and a woman in the parking lot. They asked
Higley for a ride, and he agreed. The man sat in the back, and
the woman was in the front passenger seat. Higley said each
passenger carried personal items—the man had a backpack, and
the woman had a purse and grocery bags. Higley said, while he
was driving, he heard something spill, followed by the man
saying, “I just spilled . . . my backpack.” But on cross-
examination, Higley said neither person left anything in his
vehicle.

¶10 Higley said he “was extremely exhausted” after
dropping off his passengers, so he put his vehicle in
neutral, kept the motor running, “took a few deep breaths[,] . . .
leaned back, and the next thing [he] knew,” Officer One was at
the window trying to wake him. Higley also denied telling
Officer Three that the drugs in the vehicle belonged to his
mother.

¶11 At the end of trial, Higley’s counsel moved the court to
instruct the jury on reckless driving as a lesser included offense
to the DUI charge, arguing, “[T]he facts support reckless driving
based on [Higley’s] drowsiness, his inability to operate the

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State v. Higley

vehicle safely, unrelated to the controlled substances.” Trial
counsel elaborated, “DUI is a traffic violation, and the elements
would support lesser traffic violations, because DUI is a moving
violation. . . . [I]n terms of whether or not they’re both moving
violation[s] in terms of traffic violations, I think it’s the same.”
The State opposed the motion, arguing that the charges “have
separate elements” and that a “DUI isn’t always a driving
violation. It asks that [the defendant] have actual physical
control under [the statute] and impairment.” The court denied
the motion, ruling that reckless driving was not a lesser offense
included in DUI, because it “has a separate element that goes
beyond what’s required for a DUI.” The jury convicted Higley
on all counts. Higley appeals.

ISSUES AND STANDARDS OF REVIEW

¶12 Higley first contends his trial counsel was ineffective for
failing to move to arrest judgment on the grounds that
insufficient evidence supported his DUI conviction. A claim of
ineffective assistance of counsel raised for the first time on
appeal presents a question of law. Layton City v. Carr, 2014 UT
App 227, ¶ 6, 336 P.3d 587.

¶13 Second, Higley contends the district court erred when it
declined to instruct the jury on reckless driving as a lesser
included offense in the DUI charge. A district “court’s refusal to
grant a lesser included offense instruction is a question of law,
which we review for correctness.” State v. Salgado, 2018 UT App
139, ¶ 25, 427 P.3d 1228 (quotation simplified).

¶14 Additionally, Higley contends his trial counsel was
ineffective when he did not adequately question or call
witnesses regarding Higley’s possession of heroin and
possession of drug paraphernalia. Higley has moved this court,
under rule 23B of the Utah Rules of Appellate Procedure, to
remand the case so that the record can be supplemented to
support this claim of ineffective assistance of counsel. “In

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State v. Higley

determining whether a rule 23B remand is appropriate, we
assess whether [the appellant] has made a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.” State v. Rhodes, 2019 UT App 143, ¶ 21, 450 P.3d 1123
(quotation simplified).

ANALYSIS

I. Ineffective Assistance of Counsel

¶15 To succeed on a claim of ineffective assistance of counsel,
an appellant must show counsel’s objectively deficient
performance and that the deficient performance prejudiced the
appellant. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
Because the appellant must prove both prongs of the Strickland
test, an appellate court is not required “to address both
components of the inquiry if we determine that a defendant has
made an insufficient showing on one.” Archuleta v. Galetka, 2011
UT 73, ¶ 41, 267 P.3d 232 (quotation simplified). “With regard to
the first prong, we must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” State v. Calvert, 2017 UT App 212, ¶ 22,
407 P.3d 1098 (quotation simplified). “The failure of counsel to
make motions that would be futile if raised does not constitute
ineffective assistance . . . because the decision not to pursue a
futile motion is almost always a sound trial strategy.” State v.
Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (quotation simplified). And
“the ultimate question is always whether, considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36; see also State v.
Ray, 2020 UT 12, ¶ 33.

¶16 Higley claims his trial counsel’s failure to move to
arrest judgment after the jury found him guilty of DUI
constituted ineffective assistance. At any time before sentence is
imposed, a defendant may move to “arrest judgment if the facts

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State v. Higley

proved or admitted do not constitute a public offense.” Utah R.
Crim. P. 23.

¶17 Under Utah law, “[a] person may not operate or be in
actual physical control of a vehicle within this state if the person
. . . is under the influence of . . . any drug . . . that renders the
person incapable of safely operating a vehicle.” Utah Code Ann.
§ 41-6a-502(1)(b) (LexisNexis 2018). “In DUI cases, this court has
oft stated that a jury may properly consider the entirety of the
evidence in determining whether the level of impairment . . .
makes it unsafe for an individual to drive.” State v. Harvey, 2019
UT App 108, ¶ 21, 446 P.3d 125.

¶18 Higley concedes that (1) he had actual physical control
of his vehicle and (2) he had a drug—Xanax—in his system.
But he contends the State did not show he was incapable
of safely operating his vehicle because “no officer observed
any erratic driving pattern”; he “was of clear enough mind
to put his car in neutral and have the tires rest in a gutter so
his car would not move”; he “was very responsive to
the officers’ questions and demands”; and he “offer[ed] clear
and correct information, exit[ed] his car without a problem,
and walk[ed] around without tripping or staggering.” Higley
relies heavily on Harvey, where the defendant was convicted of
DUI after failing two FSTs—the walk-and-turn test and the
horizontal gaze nystagmus test. Id. ¶ 5. In that case, this court
questioned the reliability of the walk-and-turn test because the
defendant claimed he had suffered injuries to both of his legs. Id.
¶ 27. This court held “these two failed tests, standing alone,
[we]re insufficient to support a finding beyond a reasonable
doubt that [the defendant] was so impaired that he was
incapable of safely operating his vehicle.” Id. ¶ 26. But in that
case, there was no testimony from the arresting officer that the
failure of the FSTs established “any indication of [the
defendant’s] inability to operate a motor vehicle safely.” Id. ¶ 24
n.4. But in Higley’s case, Officer Two testified that the FSTs

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State v. Higley

could show “impairment . . . if [the driver] should be driving or
not.” 2 And in this case, the FST results do not stand alone;
Higley does not grapple with the fact that he, unlike the
defendant in Harvey, was parked in an intersection and asleep at
the wheel with the motor running, that he struggled to keep his
balance, leaned on a fence, repeatedly delayed taking the FSTs,
and that he had difficulty complying with the officers’ orders. Cf.
id. ¶ 24 (“Officer stated that [the defendant] kept his balance and
did not lean on anything when he got out of his truck in
preparation to complete the FSTs. And no mention is made of
[the defendant] struggling to comply with [the officer’s] orders
during the FSTs.”). The evidence, in addition to his failed FSTs,
showed Higley speaking slowly, falling over repeatedly, nearly
walking into a sign on the side of the road, and continually
attempting to delay taking the FSTs. And Higley’s contention
that his vehicle was properly pulled over with its tires in a gutter
is belied by video evidence and the officers’ testimony. Higley
was not pulled over to the side of the road or parked in a lot; the
vehicle was in an active traffic lane, partially protruding into the
intersection with its engine running, and Higley was found
slumped over and sleeping in the driver seat.

¶19 These facts constitute ample evidence for the jury to find
Higley was unable to safely operate his vehicle. We are hard-
pressed to identify how “the facts proved . . . do not constitute a
public offense.” See Utah R. Crim. P. 23. On this basis, we
conclude any motion to arrest judgment would have been futile.
Thus, it was not objectively unreasonable for Higley’s trial
counsel to forgo moving for an arrested judgment. See Bond, 2015
UT 88, ¶ 63.

2. Although this court in Harvey acknowledged that “studies
show that fifty percent of completely sober drivers fail the walk-
and-turn test,” State v. Harvey, 2019 UT App 108, ¶ 27, 446 P.3d
125, Officer Two’s testimony was in evidence and the jury could
properly rely on it.

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State v. Higley

II. Lesser Included Offense Instruction

¶20 A defendant is entitled to a jury instruction for a lesser
included offense “where (1) the charged offense and the lesser
included offense have overlapping statutory elements and
(2) the evidence provides a rational basis for a verdict acquitting
the defendant of the offense charged and convicting him of the
included offense.” State v. Salgado, 2018 UT App 139, ¶ 49, 427
P.3d 1228 (quotation simplified); see also Utah Code Ann. § 76-1-
402(3) (LexisNexis 2017) (“A defendant may be convicted of an
offense included in the offense charged but may not be convicted
of both the offense charged and the included offense.”). An
offense is a lesser included offense if “[i]t is established by proof
of the same or less than all the facts required to establish the
commission of the offense charged.” Utah Code Ann. § 76-1-
402(3)(a). “The analysis of whether an offense is included for
purposes of deciding whether to grant a defendant’s request for
a jury instruction must . . . begin with the proof of facts at trial.”
State v. Baker, 671 P.2d 152, 158 (Utah 1983). “[W]here two
offenses are related because some of their statutory elements
overlap, and where the evidence at the trial of the greater offense
includes proof of some or all of those overlapping elements, the
lesser offense is an included offense.” Id. at 159. If a court
determines there are some overlapping elements, it must then
determine whether “the evidence offered provides a rational
basis for a verdict acquitting the defendant of the offense
charged and convicting him of the included offense.” Id.
(quotation simplified).

¶21 Higley claims it was error for the court to deny his motion
to instruct the jury on reckless driving as a lesser included
offense to his DUI charge. At trial, Higley’s counsel requested
the court instruct the jury on reckless driving as a lesser included
offense to DUI because “DUI is a moving violation.” The State
opposed the motion, explaining that “DUI isn’t always a driving
violation.” The court denied the motion because it determined
that reckless driving “has a separate element that goes beyond
what’s required for DUI.” The court elaborated, “I think if the

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State wanted to, they could charge both counts . . . in a given
case. Not this one, but they could. . . . And that’s just—that’s
evidence [that] it’s not a lesser included.”

¶22 As relevant here, the elements of reckless driving are
(1) operating a vehicle (2) “in willful or wanton disregard for the
safety of persons or property.” Utah Code Ann. § 41-6a-528(1)(a)
(LexisNexis 2018). On the other hand, as relevant here, DUI “is a
strict-liability crime,” see State v. Thompson, 2017 UT App 183,
¶ 52, 405 P.3d 892, the elements of which are (1) “operat[ing] or
be[ing] in actual physical control of a vehicle” (2) while “under
the influence of. . . any drug,” (3) “that renders the person
incapable of safely operating a vehicle,” Utah Code Ann. § 41-6a-
502(1)(b) (emphasis added).

¶23 The court did not err because the elements of each charge
do not sufficiently overlap; DUI does not require a mens rea, and
reckless driving does. Additionally, DUI requires the defendant
be “under the influence,” and “incapable of safely operating a
vehicle,” which reckless driving does not. Compare id. § 41-6a-
502(1)(b) with id. § 41-6a-528(1)(a). Although both offenses have
an element of operating a vehicle, this is not sufficient overlap to
constitute a lesser included offense, see Baker, 671 P.2d at 159,
and we conclude the court did not err when it denied Higley’s
motion for a lesser included offense jury instruction.

III. Rule 23B Remand

¶24 An appellant may seek remand “to the [district] court for
entry of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.”
Utah R. App. P. 23B(a). To succeed, an appellant must allege
nonspeculative “facts, not fully appearing in the record on
appeal, which, if true, could support a determination that
counsel was ineffective.” Id. The facts alleged must be supported
by affidavits and, “when assumed to be true, must establish both
elements of a traditional ineffective-assistance claim.” State v.

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State v. Higley

Jordan, 2018 UT App 187, ¶ 23, 438 P.3d 862 (quotation
simplified).

¶25 Higley claims his trial counsel was ineffective when he
(A) did not ask Higley questions about the brand of cigarettes he
preferred or about the passengers in his vehicle shortly before
his arrest, and (B) did not call Higley’s mother to testify to the
brand of cigarettes Higley preferred. 3 To establish objectively
deficient performance by counsel, an appellant “must overcome
the strong presumption that his 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 (quotation simplified), such that “counsel’s acts
or omissions were objectively unreasonable,” State v. Scott, 2020
UT 13, ¶ 36 (“[E]ven if a court concludes that counsel made an
error, the ultimate question is always whether, considering all
the circumstances, counsel’s acts or omissions were objectively
unreasonable.”). Higley has not established his trial counsel
performed deficiently in either instance.

A. It Was Not Objectively Unreasonable for Trial Counsel
Not to Ask Higley Certain Questions on Direct
Examination.

¶26 Higley claims his trial counsel was ineffective for not
introducing evidence that “the brand of cigarettes Mr. Higley
smoked was not the brand in which the heroin was found, and
[that] the backseat passenger interacted with the center console
in a way where he could have dropped the cigarette box with the
heroin inside the console.”

3. Higley also requests we remand to supplement the record
with trial counsel’s proposed jury instructions on reckless
driving. But because we hold the district court did not err when
it denied his motion to instruct the jury on reckless driving, see
supra ¶ 23, supplementing the record with the proposed jury
instructions is not necessary.

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State v. Higley

¶27 Higley’s affidavit asserts that he has smoked Pall Mall
Menthol Lights cigarettes for the last five years, that he has “a
severe” mental health condition, and that he has never smoked
non-menthol cigarettes. He explained that he believes the
cigarette pack with the heroin inside came from the passengers
he picked up earlier that evening because the man smoked
throughout the ride and “was leaning directly over [the] center
console” where the heroin was found. Higley’s affidavit also
says he gave this information to his trial counsel, who “did not
ask [him] questions about it at trial.”

¶28 Higley contends it was unreasonable for his trial counsel
not to question him “about the backseat passenger’s interactions
with the center console” and about the type and brand of
cigarettes he prefers. But Higley had ample opportunity to
present his theory that the heroin was dropped by the passenger
during his testimony.

¶29 Higley testified at length—and sometimes in narrative
fashion—about the passengers in his vehicle, and trial counsel
even asked whether “anything happen[ed] while [he was] in the
car—out of the ordinary,” to which Higley responded he heard
the man in the backseat spill something. He did not elaborate
about any other behavior from his passengers, though this
would have been his opportunity to do so, including his current
contention that the backseat passenger was leaning over his
center console while smoking. And on cross-examination, Higley
said the passengers did not leave anything in his vehicle. Officer
One also testified that Higley asked if he could smoke a cigarette
and then “made a movement with his hand toward . . . the center
console,” which is where the heroin was found inside a Natural
American Spirit cigarette box. There were no other cigarette
boxes found in the vehicle.

¶30 In short, the questions trial counsel (and opposing
counsel) posed to Higley during his direct and cross-
examinations gave Higley every opportunity to provide
additional details—if he had any—about the brand of cigarettes

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State v. Higley

he preferred to smoke and about the involvement his passengers
might have had with the center console. Trial counsel asked a
number of open-ended questions in this area and allowed Higley
to testify at times in narrative fashion about the events in
question. Under these circumstances, the additional facts
alleged, even if true, do not establish that trial counsel
performed in an objectively deficient manner for not asking
more specific questions about Higley’s passengers on direct
examination. See Clark, 2004 UT 25, ¶ 6.

B. It Was Reasonable for Trial Counsel Not to Call Higley’s
Mother to Testify.

¶31 Next, Higley claims it was unreasonable for his trial
counsel not to call his mother to testify about his preferred brand
of cigarettes to bolster his defense that the heroin found in his
center console was not his. Higley’s mother’s affidavit
establishes that she “ha[s] only seen [Higley] buy Pall Mall
Menthol Lights” and that she “see[s] his packs of cigarettes on a
daily basis, as he leaves them in different rooms in [her] home.”
She also asserts she spoke with Higley’s trial counsel “and told
him [she would] be more than willing to testify” that Higley
“only bought these kind of cigarettes.” But failing to elicit this
testimony at trial was not objectively unreasonable.

¶32 Officer Three testified that, upon being confronted with
the cigarette pack containing heroin, Higley claimed it was his
mother’s; when Higley testified, he denied saying this to Officer
Three. It is true trial counsel could have called Higley’s mother
to rebut this claim and to testify about Higley’s preferred brand
of cigarettes; in fact, she was listed as a potential witness. But the
decision to call a witness is squarely within the trial strategies
and tactics that are given wide latitude when determining
whether an appellant received objectively deficient assistance of
counsel, see State v. Tyler, 850 P.2d 1250, 1256–58 (Utah 1993), and
we cannot say that counsel’s decision “‘fell below an objective
standard of reasonableness’ when measured against ‘prevailing
professional norms,’” see State v. Popp, 2019 UT App 173, ¶ 26,

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453 P.3d 657 (quoting Strickland v. Washington, 466 U.S. 668, 687–
88 (1984)). First, if Higley’s mother testified, the State could have
highlighted the inconsistent stories Higley told about the heroin,
initially by claiming it was his mother’s and then implying it
belonged to his passengers. Second, given her relationship to
Higley, counsel could have determined that the jury would have
been unlikely to give her testimony much weight. Because these
are “conceivable legitimate strategic bas[e]s,” State v. Moore, 2012
UT App 227, ¶ 7, 285 P.3d 809 (quotation simplified), for trial
counsel’s decision not to call Higley’s mother to testify, Higley
has not met his burden of showing counsel’s performance was
objectively unreasonable, see State v. Scott, 2020 UT 13, ¶¶ 35–36;
State v. Ray, 2020 UT 12, ¶ 36; see also Taylor v. Warden, 905 P.2d
277, 287 (Utah 1995) (concluding counsel performed reasonably
when deciding not to call the defendant’s father to testify
because the “testimony would be more harmful than helpful”
and the father “would not be very credible”).

CONCLUSION

¶33 Higley’s trial counsel did not provide ineffective
assistance by not moving to arrest judgment because any such
motion would have been futile. The district court did not err
when it denied Higley’s motion to designate reckless driving as
an offense included in DUI because there is insufficient overlap
in the statutory elements to support a lesser included offense
instruction. Thus, we affirm his DUI conviction. And because
Higley has not established nonspeculative facts that show his
trial counsel was ineffective for failing to question him more
thoroughly about the passengers in his vehicle or the brand of
cigarettes he preferred and for not calling his mother to testify,
we deny his motion for a rule 23B remand.

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