State v. Ames

546 P.3d 356

2024 UT App 30

STATE of Utah, Appellee,

v.David Wayne AMES, Appellant.

No. 20220143-CA

Court of Appeals of Utah.

Filed March 7, 2024

Eighth District Court, Duchesne Department, The Honorable Samuel P. Chiara, No. 211800119

Peter Daines, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Emily Sopp, Attorneys for Appellee

Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Amended Opinion^*

TENNEY, Judge:

¶1 A jury convicted David Ames on three counts of possessing a dangerous weapon as a restricted person and one count of possessing drug paraphernalia. Ames now challenges his convictions on two grounds. First, he argues that he received ineffective assistance when his counsel failed to object to certain omissions in the jury instructions regarding the dangerous weapon counts. And second, he argues that he received ineffective assistance when his counsel failed to seek a directed verdict on the drug paraphernalia count. For the reasons set forth below, we reverse one of Ames’s dangerous weapon convictions, but we affirm his remaining convictions.

BACKGROUND¹

The Incident

¶2 In April 2021, Ames lived in the basement unit of a duplex with his mother (Mother) and nephew (Nephew). Additional family members, including some children, lived in the duplex’s upstairs unit. Ames was a Category I restricted person, which meant that he was prohibited from possessing a "dangerous weapon" under Utah Code section 76-10-503(2).

¶3 Ames suffers from schizophrenia. He had previously been prescribed medication for his condition, but he had stopped taking it "at least a couple of years" before April 2021. In Mother’s experience, Ames’s symptoms came in cycles. He would do "really well for a while" and then "kind of fall[ ] off." In the bad phases, Ames didn’t "think accurately" and would become paranoid. In the days leading up to April 7, 2021, Mother observed Ames’s symptoms worsening.

¶4 A few days before April 7, Ames brought an axe into his bedroom. Typically, the axe was stored outside, where he and the other "boys" in the house would sometimes use it to cut wood. Ames told Mother that somebody had stolen a different axe of his and that he needed this axe "for protection." When Mother tried to substantiate Ames’s claim, however, she found the other axe in its regular place.

¶5 On the morning of April 7, Mother looked out the window of the basement unit and saw Ames holding a chain with an attached padlock. Ames was "throwing [the] chain around and throwing it against the house and flipping it around over his head."

¶6 Mother stepped outside and asked Ames what he was doing. Ames entered the house and said that "[e]verybody was messing with him." Ames added, "I’m about to crack somebody’s head open[,] and they’re going to be just as dead as the two bodies under my bed." With his worsening schizophrenia symptoms in mind, Mother was worried that Ames might be referring to "one of … the kids at the house or me or somebody" with this comment. Ames then said, "Come with me. Come here and look and see and let me show you." Mother understood this to be an invitation to go to his room, but she was "concerned that he might do harm" to her, so she declined. Instead, she decided to call Ames’s probation officer.

¶7 Mother began walking down the hall to retrieve her purse so that she could go to her car and make the call outside of Ames’s hearing. Ames followed her. At some point, Ames picked up a "little hook" that he sometimes used to deep fry turkeys and began "swinging it around." Mother was now "concerned about being safe." As the two reached the end of the hallway and entered the kitch- en, Ames turned and threw the hook down the hall into a closet.

¶8 Mother got into her car, drove "down the road a little ways," and then stopped and called Ames’s probation officer. The probation officer advised her to call 911. After doing so, Mother returned to the house. Rather than returning to the basement, Mother went to the upstairs unit to warn the children who lived there that Ames "wasn’t thinking clear" and that law enforcement was "going to come talk to him."

¶9 Mother stayed in the upstairs unit until police officers arrived, but Nephew went downstairs to "grab a shirt." When he approached the door, Ames yelled, "Get the fuck out of the house." Nephew entered anyway, replying, "This is my house, too. I’m just coming downstairs to grab a shirt." Nephew heard Ames say "something about breaking [his] windshield," and he then heard a sound like "a chain" "jingling" "off of like wood." After retrieving a shirt from his bedroom, Nephew looked back to see what Ames was doing. He saw that officers had arrived and had stopped Ames at the front door of the unit.

¶10 Officers took statements from Mother and searched the residence. During that search, officers found the axe in a closet next to Ames’s room where Ames stored his clothes, the chain and padlock outside the front door where Ames had thrown it when the police first arrived, and the turkey hook hanging from the ceiling fan in Ames’s bedroom.

¶11 While officers were conducting their search, Mother also gave them a lightbulb that she had taken from the trash can in Ames’s bedroom a few days earlier. This lightbulb was deformed in several unusual ways. First, it had "the part that screws into the light socket broken off" so that there was "a hole going all the way through." Second, there was a hole on top of the lightbulb with "somewhat melted" duct tape placed over it. And third, inside the lightbulb, there were "burn marks and some type of residue." Mother later explained that the other residents of the house "pretty much stayed out of’ Ames’s bedroom. She also explained that in the days leading up to April 7, she had become concerned that Ames was using methamphetamine due to his recent behavioral changes and increasing anger. On the day of his arrest, Ames tested positive for methamphetamine.

Charges, Trial, and Jury Instructions

¶12 The State charged Ames with a host of mostly possession-related offenses, but many of the counts were dismissed at a preliminary hearing. The case later went to trial on six counts: three counts of possessing a dangerous weapon as a restricted person, one count of possessing drug paraphernalia, one count of public intoxication (which was based on the positive methamphetamine test), and one count of disorderly conduct. The three dangerous weapon counts were based on the axe, the chain and padlock, and the turkey hook, respectively, while the drug paraphernalia count was based on the altered lightbulb that Mother found in Ames’s trash can.

¶13 At trial, Mother and Nephew testified to the events described above. One of the responding officers (Officer) testified to the circumstances surrounding the seizure of various items and about Ames’s positive drug test.

¶14 In the jury instructions, the jury was informed that for the possession of a dangerous weapon counts, the term "dangerous weapon" meant "an object that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Utah Code § 76-10-501(6)(a)(ii). But no instruction informed the jury what the term "serious bodily injury" meant.

¶15 Ames was convicted on all counts. He now appeals.

ISSUES AND STANDARD OF REVIEW

[1] ¶16 Ames argues that his counsel was ineffective for (1) not requesting a jury instruction defining the term "serious bodily injury" as it related to the dangerous weapon counts and (2) not moving for a directed verdict on the drug paraphernalia count. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Suhail, 2023 UT App 15, ¶ 72, 525 P.3d 550 (quotation simplified), cert. denied, 531 P.3d 730 (Utah 2023).

ANALYSIS

[2] ¶17 Ames argues that he received ineffective assistance on two grounds. To prevail on an ineffective assistance claim, Ames must show (1) "that counsel’s performance was deficient" and (2) "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ames must establish both prongs. See State v. Suhail, 2023 UT App 15, ¶ 122, 525 P.3d 550, cert. denied, 531 P.3d 730 (Utah 2023). If either is lacking, "the claim fails" and this court "need not address the other." State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031.

[3] ¶18 To establish deficient performance, Ames must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quotation simplified). The focus of this inquiry is reasonableness, and we "judge the reasonableness of counsel’s challenged conduct, viewed as of the time of counsel’s conduct." State v. Carter, 2023 UT 18, ¶ 45, 535 P.3d 819 (quotation simplified).

[4, 5] ¶19 To establish prejudice, Ames "must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." State v. Bonds, 2023 UT 1, ¶ 53, 524 P.3d 581 (quotation simplified). When evaluating a prejudice claim in the ineffective assistance context, "we assess counterfactual[ ] scenarios—that is, what would have happened but for the ineffective assistance"—and "we may do so with the evidence available to us, even when not part of the original record." Ross v. State, 2019 UT 48, ¶ 76, 448 P.3d 1203.

I. Possession of a Dangerous Weapon

¶20 Ames was charged with three counts of possessing a dangerous weapon—one count each for the axe, the chain and padlock, and the turkey hook. Under Utah Code section 76-10-503(2), a "Category I restricted person" who "intentionally or knowingly purchases, transfers, possesses, uses, or has under the person’s custody or control … a dangerous...