State v. Higley

463 P.3d 77

STATE of Utah, Appellee,

v.Gregory Scott HIGLEY, Appellant.

No. 20190041-CA

Court of Appeals of Utah.

Filed March 26, 2020

Emily Adams and Cherise Bacalski, Attorneys for Appellant

David O. Leavitt, Nephi, 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.

Opinion

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.

BACKGROUND¹

¶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."

¶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 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 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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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...