State v. Lisenbee

505 P.3d 523

STATE of Utah, Appellee,

v.Earon William Edward LISENBEE, Appellant.

No. 20200155-CA

Court of Appeals of Utah.

Filed February 10, 2022

Gregory W. Stevens, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Thomas Brunker, Salt Lake City, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Ryan D. Tenney concurred.

Opinion

HARRIS, Judge:

¶1 Earon Lisenbee brutally attacked a friend after a disagreement over the status of their relationship, inflicting serious permanent injuries and nearly causing her death.

As a result of the attack, Lisenbee was charged with, among other things, attempted murder. After a three-day trial, a jury convicted Lisenbee of attempted murder. Lisenbee now appeals that conviction, arguing that his trial attorney rendered ineffective assistance by failing to object to allegedly erroneous jury instructions. We affirm.

BACKGROUND¹

¶2 Lisenbee and Rebecca² had been working on some artwork, and Lisenbee invited Rebecca over to his apartment, ostensibly to discuss that artwork. Shortly after Rebecca arrived at the apartment, an argument ensued about the status of their relationship, with Lisenbee expressing that he wanted to be more than just friends. At that point, Rebecca attempted to leave the apartment and began making her way to the front door, but Lisenbee pushed her back and prevented her from leaving. Due to the severity of her head injuries, Rebecca remembers very little about what came next. But she does remember that Lisenbee pinned her to the ground, by placing his knee on her chest, and hit her with his fists. She also remembers that at one point, Lisenbee stopped hitting her with his fists and instead began hitting her in the face and ribs with something shiny, which she believed was an exercise weight.

¶3 Sometime after the attack, Lisenbee called a friend (Friend) and said, "I think I killed her." Thinking it was a joke, Friend initially hung up. Lisenbee continued to call Friend, and during these various phone calls he told Friend that he had "beat her with a hammer" and that he wanted Friend's help disposing of her body. During one of the calls, Friend could hear "somebody gurgling on blood" in the background; at that point, Friend became concerned that someone was actually hurt and called the police. Around this same time, Lisenbee also received a text message from another friend asking how he was doing, to which Lisenbee replied, "I just murder" and "not lying."

¶4 When police arrived at Lisenbee's apartment, they observed broken glass and blood on the floor, and it was "immediately evident" to them that "something bad ... had taken place." Police eventually found Lisenbee and Rebecca inside a locked bedroom, with Rebecca unconscious on the floor and Lisenbee lying down next to her. Both Lisenbee and Rebecca were "covered with blood," and Rebecca's face was beaten so badly that it appeared "almost flat," as if "the orbital bones were caved in." Police also observed multiple teeth lying on the bedroom floor. Rebecca was immediately rushed to the hospital, and police took Lisenbee into custody. Later, during a search of the apartment, police found a bloody hammer concealed underneath a pair of shorts in the bedroom closet.

¶5 After investigation, the State charged Lisenbee with attempted murder, aggravated kidnapping, mayhem, and assault. The case proceeded to a jury trial, which lasted three days. At trial, the State presented testimony from Rebecca, Friend, several law enforcement officers, and various medical professionals who had treated Rebecca's injuries. In addition to testifying about what she remembered regarding the attack, Rebecca described the injuries she had sustained: her right arm and several fingers were broken, as was "every single bone" in her face; she had three hematomas —"big balls of pus and blood"—on her head; and all the teeth on the right side of her mouth were knocked out. Rebecca testified that, as a result of her injuries, she has "a hard time breathing" and "can't sleep more than an hour at a time," that she is now blind in her right eye, and that she "feel[s] pain all the time." In addition to confirming the extent and severity of Rebecca's injuries, the physicians who treated Rebecca testified that had she not received timely treatment, she would have died.

¶6 After presentation of the evidence, the trial court instructed the jury. With regard to the attempted murder charge, the court's instruction stated that the jury could not convict Lisenbee unless it was able to find, beyond a reasonable doubt, that Lisenbee had "[i]ntentionally or knowingly attempted to cause the death of [Rebecca] and the defense of intoxication does not apply." And the instruction for attempt stated that:

A person is guilty of an attempt to commit a crime if he:

a. Engages in conduct constituting a substantial step toward the commission of the crime; and

b. Intends to commit the crime; or

c. When causing a particular result is an element of the crime, he acts with an awareness that his conduct is reasonably certain to cause that result.

The attempt instruction also stated that "[c]onduct constitutes a substantial step if it strongly corroborates the actor's mental state."

¶7 The jury ultimately acquitted Lisenbee of mayhem, but convicted him of attempted murder, aggravated kidnapping, and assault. Later, the trial court sentenced Lisenbee to prison.

ISSUE AND STANDARD OF REVIEW

¶8 Lisenbee now appeals his conviction for attempted murder, and asserts that his trial attorney rendered ineffective assistance by failing to object to allegedly erroneous jury instructions regarding the attempted murder charge.³ "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." State v. Beckering , 2015 UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).

ANALYSIS

¶9 To establish that his attorney was ineffective, Lisenbee must show both (1) that his attorney's performance was deficient, in that it "fell below an objective standard of reasonableness," and (2) that this deficient performance "prejudiced the defense" such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; accord State v. Scott , 2020 UT 13, ¶ 28, 462 P.3d 350 ; State v. Ray , 2020 UT 12, ¶ 24, 469 P.3d 871. "A defendant must satisfy both parts of this test in order to successfully establish ineffective assistance." State v. Whytock , 2020 UT App 107, ¶ 26, 469 P.3d 1150. Thus, "it is unnecessary for a court to address both components of the inquiry if we determine that a defendant has made an insufficient showing on one." Id. (quotation simplified).

¶10 The first part of the test requires Lisenbee to show that his attorney's performance "fell below an objective standard of reasonableness." Scott , 2020 UT 13, ¶ 31, 462 P.3d 350 (quotation simplified). In evaluating counsel's actions, courts will often look to whether those actions were motivated by a reasonable trial strategy. See id. ¶ 35 ("[T]he performance inquiry will often include an analysis of whether there could have been a sound strategic reason for counsel's actions."). And while "the ultimate question is not whether there was a possible strategic reason for counsel's conduct, but instead whether that conduct was objectively reasonable," id. , "[i]f it appears counsel's actions could have been intended to further a reasonable strategy, a defendant has necessarily failed to show unreasonable performance," Ray , 2020 UT 12, ¶ 34, 469 P.3d 871.

¶11 Lisenbee claims that his attorney performed deficiently by failing to object to erroneous jury instructions regarding the attempted murder charge. Specifically, he claims that the instruction erroneously permitted the jury to convict him of attempted murder based on a knowing mental state—as opposed to an intentional mental state—in violation of our supreme court's guidance in State v. Casey , 2003 UT 55, 82 P.3d 1106.⁴ Thus, because the jury instructions allegedly "set[ ] a lower threshold of mental culpability than that which [was] required," Lisenbee asserts that the instructions were erroneous and that his trial attorney performed deficiently by not objecting to them.

¶12 As noted above, the court instructed the jury that it could not convict Lisenbee of attempted murder unless it was able to find that he had "[i]ntentionally or knowingly attempted to cause the death of [Rebecca]." And the court further instructed the jury that a person is guilty of an attempt crime if he "[e]ngages in conduct constituting a substantial step toward the commission of the crime" and either "[i]ntends to commit the crime" or "acts with an awareness that his conduct is reasonably certain to cause that result." Lisenbee correctly asserts that these instructions allowed the jury to convict him of attempted murder based on a knowing mental state. But Lisenbee is incorrect when he asserts that such instructions are contrary to Utah law applicable at the time of the offense.

¶13 In Casey , the defendant was charged with, among other things, attempted murder. See id. ¶ 6. Regarding that charge, the trial court instructed the jury that the required mental state was "intentionally or knowingly." Id. ¶ 8 (quotation simplified). The jury found the defendant guilty of attempted murder and the defendant appealed that conviction, arguing that the jury instructions were erroneous because they "permitted the jurors to find [the defendant] guilty if they determined he acted with an intentional or knowing state of mind." Id. ¶ 9. On appeal, our supreme court held that "an attempted murder conviction requires proof that the...