Defendant, Boyd D. Harper, appeals from his bench trial conviction of aggravated assault in violation of Utah Code Ann. § 76-5-103 (1978), a third degree felony. Defendant claims he was denied his sixth amendment right to effective assistance of counsel. We affirm.
We review the facts in the light most favorable to the trial court's verdict. Security State Bank v. Broadhead, 734 P.2d 469, 470-71 (Utah 1987); Miller v. Archer, 749 P.2d 1274, 1276 (Utah Ct.App. 1988).
On December 11, 1984, defendant and his wife ("Ms. Harper") were at home drinking beer and entertaining guests. After the guests left, an argument ensued when Ms. Harper asked defendant for a divorce. When Ms. Harper's nephew called her at about 8:00 p.m., he heard defendant yelling in the background, and the phone was hung up abruptly.
Defendant was apprehended later that evening while driving under the influence of alcohol. When defendant was first arrested, he denied hitting Ms. Harper. Later, defendant admitted he had struck Ms. Harper, and that she was in the bathroom washing blood off her face when he left the house.
Ms. Harper was hospitalized for nine days as a result of defendant's attack. Her treating physician testified that Ms. Harper's cheekbone was broken in many places, and that her nose was deformed, displaced and shattered. Her physician further testified that she will need additional surgery to restore her left nasal airway and to correct an abnormal depression of her nose but even with the proposed treatments, Ms. Harper will suffer a "serious permanent disfigurement."
Defendant claims he was denied effective assistance of counsel during his bench trial primarily because his counsel neither made a motion in limine to exclude nor objected to his impeachment by two prior theft convictions, one felony and one misdemeanor. Defendant also alleges that his counsel was ineffective because he failed to object to the introduction of duplicative, prejudicial photographs of Ms. Harper's injuries, and to an improper, hypothetical question to a medical witness about memory loss.
INEFFECTIVE ASSISTANCE OF COUNSEL
In analyzing a claim of ineffective assistance of counsel, we must review the totality of circumstances and the complete context in which the possible attorney error occurred. State v. Pursifell, 746 P.2d 270, 273 (Utah Ct.App. 1987). A presumption exists on appeal that the trial was fundamentally fair to the defendant. State v. Frame, 723 P.2d 401, 406 (Utah 1986).
To prevail, the defendant must meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984): (1) Counsel's representation must fall below "objective reasonableness," resulting in (2) prejudice to defendant. See e.g., State v. Pursifell, 746 P.2d 270, 275 (Utah Ct.App. 1987); State v. Frame, 723 P.2d 401, 405 (Utah 1986). Procedurally, "[w]e need not decide whether counsel's performance was deficient if defendant fails to satisfy his burden of showing that he was prejudiced as a result of the alleged deficiencies." Pursifell, 746 P.2d at 275. Accordingly, we reject defendant's claim as he has failed to show a "reasonable probability" that the representation he received affected the ultimate result in his bench trial.
The analysis of our Supreme Court in State v. Frame, 723 P.2d 401 (Utah 1986) supports our conclusion. In Frame, the defendant claimed ineffective assistance of counsel at his jury trial for murder. As in the instant case, eyewitness testimony that the defendant struck the victim was uncontroverted by the defendant's own explanation of the incident. In Frame, the Utah Supreme Court ruled that the defendant's own testimony was sufficient to affirm the conviction of second degree murder. Therefore, the court found the objectionable evidence was not prejudicial to the outcome of the case. Id. at 405-06.
BENCH and ORME, JJ., concur.