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Harris v. State2/27/2003
MEMORANDUM DECISION
Not For Official Publication
Marcy Harris appeals her conviction of driving under the influence of alcohol, a class A misdemeanor. Harris argues her defense counsel's failure to move for a directed verdict or arrest of judgment on the basis of insufficient evidence constituted ineffective assistance of counsel. However, where "any objection to the sufficiency of the evidence at trial would have been denied, [Harris's] counsel was not ineffective for failing to raise it." State v. Yanez, 2002 UT App 50, , 42 P.3d 1248.
The evidence was clearly sufficient to convict Harris. At trial, Officer James Van Fleet testified that Harris failed several field sobriety tests and displayed a blood alcohol level above the legal driving limit. Further, Harris admitted she consumed two twelve-ounce beers over the course of an hour or hour-and-a-half before driving her vehicle. Finally, there was evidence that Harris drank an additional quart of beer, although testimony was conflicting over whether this occurred before or after Harris drove her vehicle. Officer Van Fleet testified Harris told him at the time of her arrest she had nothing to drink after she drove to her friend's house. At trial, Harris claimed she had the additional quart of beer after returning to her friend's house.
Harris insists the evidence was insufficient without more evidence that she drank the quart of beer before operating her vehicle. Even if sufficiency hinged on that fact, "a choice between conflicting testimony is within the province of the jury." State v. Pedersen, 802 P.2d 1328, 1330 (Utah Ct. App. 1990) (quotations and citations omitted). Here, the jury simply "chose to believe" testimony presented by the State, and "we will not second guess its judgment." Yanez, 2002 UT App 50 at . Because any motion for a directed verdict or arrest of judgment on the basis of insufficient evidence would have been denied, Harris's counsel's performance did not fall "below an objective standard of reasonable and professional judgment." State v. Kelley, 2000 UT 41, , 1 P.3d 546 (quotations and citations omitted). Therefore, Harris's ineffective assistance of counsel claim fails. Affirmed.
Judith M. Billings, Associate Presiding Judge
WE CONCUR:
James Z. Davis, Judge
Gregory K. Orme, Judge
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