State v. Diviney

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                    LARRY CHARLES DIVINEY,
                          Appellant.

                            Opinion
                        No. 20190778-CA
                      Filed October 7, 2021

          Fifth District Court, Cedar City Department
                 The Honorable Keith C. Barnes
                          No. 171500731

          Emily Adams, Freyja Johnson, and Cherise M.
                Bacalski, Attorneys for Appellant
         Sean D. Reyes and David A. Simpson, Attorneys
                          for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
     JUDGE DIANA HAGEN and SENIOR JUDGE KATE APPLEBY
                       concurred.1

MORTENSEN, Judge:

¶1      Shoeless, bloody, emotional, and carrying her small child,
Ella2 stumbled into a convenience store just after 3:00 a.m. one
November morning. Soon after, she explained to responding
police officers that her husband, Larry Charles Diviney, had
locked her in their basement apartment and beat her with a

1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

2. A pseudonym.
                          State v. Diviney


baseball bat before she was able to collect their child and escape.
Although Diviney told police a different story—a story that
involved him inadvertently hitting Ella with the baseball bat
while fighting with an unidentified home intruder—after trial, a
jury convicted Diviney of domestic violence in the presence of a
child, aggravated kidnapping, and aggravated assault. Diviney
appeals, and we affirm.


                        BACKGROUND3

                            The Attack

¶2      Convinced Ella was cheating on him, Diviney was
suspicious and angry. And during a weekend trip to Las Vegas
in the midst of him harboring these beliefs, he punched her in
the face and forced her to use drugs with him. But the weekend
was only beginning. After arriving back home, and after Ella had
put their child to bed, Diviney yelled at her, threw a plate at her,
broke a Swiffer mop against the cupboards above her head, and
again punched her in the face. Ella fled to the child’s room,
where she spent the night listening to Diviney moving about in
the living room and kitchen.

¶3     The next day, Diviney again began yelling at Ella, this
time in front of their child. So Ella left their apartment, child in
arm, to visit a nearby park. But Diviney followed, driving past
the park multiple times. When the November air started getting
cold, when no one answered the door at her father’s apartment,
and when the dark of night approached, Ella returned home

3. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” Layton City v. Carr, 

, ¶ 2 n.2, 

 (cleaned up).




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                         State v. Diviney


and, finding herself without a phone or key, broke a window to
get into their apartment.

¶4     When Diviney returned and became infuriated over Ella
breaking the window, she told him she had no other choice and
asked him to leave. Diviney left, but only long enough for Ella to
put their child down for bed, leaving the bedroom door cracked
open so she could hear the child while she smoked a cigarette.
Soon, Ella saw Diviney arrive at the apartment carrying a
baseball bat and she ran outside, screaming for Diviney “not to
hurt her” and to leave. He left. Ella retreated to their apartment,
but no sooner had she checked on the still-sleeping child, than
Diviney returned, bat still in hand.

¶5      Diviney insisted to Ella that he returned only to light a
fire to keep Ella and their child warm, and Ella told him he could
stay “as long as he didn’t try to talk to her.” After only ten
minutes, Diviney resumed berating Ella, and she walked up the
staircase to leave—only to find her way blocked by a locked
door. From behind her, Ella heard Diviney say “You’re not going
anywhere.” He then “grabbed her by her hair, pulled her off her
feet, and dragged her back down the stairs.” Breathless and on
her knees, Ella tried to stand, but Diviney hit her head with the
baseball bat. When Ella raised her arms in protection, Diviney
hit her in the arm. And when Ella tried to stand again, Diviney
hit her a third time.

¶6      In a daze, Ella asked for something to stop the blood now
flowing from her head. In response, Diviney dragged her by the
hair saying, “[F]ine, let’s go to the bathroom.” The tissue she
used to stop the bleeding did not work, but when Ella insisted
she needed medical care, Diviney slammed the bathroom door,
telling Ella that she was not “going anywhere,” that she would
“sit there and talk to” him, and that she had “destroyed [his] life
and [he was] going to destroy” hers. If she did not answer his
questions truthfully, he threatened to hit her again and use a



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                         State v. Diviney


meat grinder to break her toes. Diviney interrogated Ella about
her alleged infidelity, but Ella’s insistent denials only made him
angrier. Ella recalled that she felt “[e]verything [she] said was
just wrong” as far as Diviney was concerned. After being hit
“multiple times again,” Ella played it safe and started to “agree[]
with him.” Throughout the ordeal, Ella begged to check on their
child to see if he was “hearing this,” but Diviney refused.

¶7     When Diviney finally took Ella out of the bathroom, he
rebuffed her requests to check on their child and ultimately
positioned himself (baseball bat in hand) between her and the
door to the outside. “[Y]ou have to understand,” he said, “only
one of us is getting out of here alive tonight and it’s not looking
good for you.” Diviney became angrier and angrier, and when
Ella asked if she could call someone, Diviney taunted, “[G]o, call
someone,” but “[y]ou’ll be dead and I’ll be gone before they get
here.” Suddenly, to Ella’s relief, Diviney (who had a history of
heart problems) “leaned over, grabbed his chest,” sat down, and
“passed out.”

¶8     Ella snuck past Diviney, collected their child, unlocked
the door, and ran into the night without even pausing to put on
shoes. She was visibly distressed when she stumbled into a gas
station just after 3:00 a.m., bruises on her face, arms, leg, shin,
and hip, and bleeding from the gash on her head. After
responding police finally succeeded in calming her, she detailed
much of what has been described.

¶9     Diviney, on his part, never reported Ella or their child
missing, and when police visited the apartment, Diviney was
nowhere to be found. The door was locked, but after forcing
their way in, police found many things that corroborated Ella’s
account. When police apprehended Diviney, he told a different
story. According to Diviney, on that day he had come home
from work to find Ella “making solicitation with the guy across
the street,” and when he went into the apartment, another man



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                          State v. Diviney


was in the bathroom. The man allegedly attacked Diviney with a
baseball bat, hitting him “in the nose and knocking out some of
his teeth.” When Diviney got the bat away from the intruder, he
swung at the intruder’s head, but the intruder ducked, and
Diviney “accidentally” hit Ella in the head. According to
Diviney, when he offered to take Ella to the hospital, she
refused, so Diviney went to bed, and when he woke, Ella and
their child were gone.

¶10 Diviney swore this all resulted from Ella’s involvement in
an ongoing prostitution ring. He alleged that she would leave
“the [apartment] to go catch clients” and “used a coded system
of lights to communicate with the rest of the ring.” Diviney
reported that a minor “irritation” on his nose was actually a
broken nose that resulted from being hit in the face with the bat,
and although he initially denied knowing why the Swiffer mop
was broken, he ultimately admitted that he had stomped on it
and threw it because he was angry that Ella was “sleeping
around with these guys.” Diviney maintained that Ella’s
accusations were false and that she just wanted him in jail.

¶11 The State charged Diviney with aggravated kidnapping,
aggravated assault, and commission of domestic violence in the
presence of a child.

                              The Trial

¶12 At trial, defense counsel began by telling the jury that “at
the core” of the conflict was Ella’s “deep-seated fear . . . that she
was going to lose her child.” This fear was “driven largely
because [of] her history with drug use when the child was born,”
a history that caused Child Protective Services to become
involved because she had “admitted to using drugs during her
pregnancy.” The idea behind this theory was that Ella had
framed Diviney for domestic violence to prevent him from
reporting her drug use to Child Protective Services. But later,
Diviney chose not to testify, a choice that resulted in a lack of


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                         State v. Diviney


“evidence that [Ella] actually was using drugs at the time of the
crime.” So defense counsel adjusted the approach, focusing
primarily on Ella’s credibility, while leaving the door open to the
drug-based theory.

¶13 While cross-examining Ella, defense counsel asked her
about allegations that, in the months leading up to the abuse,
Diviney found a methamphetamine pipe in Ella’s belongings
and later confronted her when he found a syringe. Ella denied
the allegations. When Ella testified that she did not “do drugs
close in time to this incident,” defense counsel doubled down on
the opportunity to question Ella’s credibility and to offer
evidence of her drug use to support the defense’s original theory
of the case. Defense counsel elicited testimony that she admitted
to taking drugs during the Las Vegas trip, but Ella averred that
“the only reason [she] did drugs is because [Diviney] threatened
[her] to do the drugs.” When pressed on the issue and asked
whether her testimony was that “the only time [she had] ever
done drugs was that day,” she responded, “No, I’m saying
there’s this incident that was those days. That was the only, for
months and months that was the only time.”

¶14 Ella denied that she had obtained drugs on the Las Vegas
trip, that she solicited men to obtain drugs for her, that drugs
were the true basis for the arguments leading up to the abuse,
that she had ever “been in any fear of losing” her child, and that
she feared Diviney would report her to Child Protective Services
for using drugs. As to using drugs during the Las Vegas trip,
Ella testified,

      I am absolutely ashamed . . . just ashamed
      completely. It’s not something that I do and so. It
      was just that, I mean, what I’m trying to say is that
      what happened, it only, even though it was only
      one time, I was ashamed of it. And so it was very




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                         State v. Diviney


      hard for me to bring it to you and talk to you. But I
      wanted to be 100 percent honest, so.

Defense counsel contended that this testimony had “opened the
door to where [he] should [have been] able to impeach her”
because she had testified that the incident in which Diviney
allegedly forced her to use drugs was “[t]he only time” she had
used drugs. Specifically, defense counsel proposed introducing
criminal records from 2013 regarding “possession of psychotic
chemicals,” as well as medical records from that May showing a
positive methamphetamine test. Having limited his earlier
references to drugs during his examination of Ella, defense
counsel argued,

      I was happy to confine myself. And I think the
      [c]ourt was fair in its rulings. But now she’s laid
      out something that’s completely not true and I
      think we have the right to walk through that door.
      And if she admits to the things I ask her, then so be
      it. We’ll move on. I don’t think we can go much
      further than that. But if she denies it, I would be
      asking that . . . we’d be able to introduce either the
      criminal history or the medical records to
      substantiate that [it] is, in fact, not true.

The State countered by arguing that Ella meant only that this
was “the only time that [she] took drugs in the timeframe of
[the] Las Vegas” trip. But the court agreed with defense counsel
that the testimony “could have been confusing” and thus,
allowed defense counsel “to get a clarification from her.”

¶15 After conferring with the court and the State about the
language necessary to confine the clarification to that narrow
issue, defense counsel ultimately asked Ella, “Are you saying
that [the Las Vegas trip was] the only time that you have used
illegal drugs?” To which Ella responded, “In my lifetime? No.”




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                           State v. Diviney


In the end, defense counsel dropped the initial theory of the case,
stating in closing that

       [Ella is] lying, . . . she’s making it up. And frankly, I
       don’t know why and you don’t know why. But we
       don’t have to prove that. Some people like
       attention. Some people exaggerate. Some people, I
       don’t know, have ulterior motives. I don’t know,
       you don’t know why she may be lying, why she
       may be saying these things.

Not once during closing argument did defense counsel suggest
that drug use provided Ella’s motive to lie about the abuse.

¶16 But before the trial ended, Diviney moved for a directed
verdict on the count of domestic violence in the presence of a
child. Diviney argued that the elements for that charge required
that “there has to be at least some possibility that [a child] can,
not just a possibility, but that the child is essentially a perceiving
witness [of the domestic violence] in some way, shape, or form”
and that this element could not be met in this case because the
child was asleep. The trial court informed Diviney that it was
“not aware” of “anything that suggests that if a child is present
physically but is asleep that would make it that it would be
improper,” and Diviney conceded that his argument relied on
the statutory language. The State pointed out that the statutory
language defining “in the presence of a child,” as referenced in
the jury instructions, meant “having knowledge that a child is
present and may hear, or may see, or hear an act of domestic
violence.” (Emphasis added.) The trial court focused on the
operative word “may” and denied the motion, determining that
“the State ha[d] produced believable evidence . . . of the
elements of the crime charged.”

¶17    Diviney appeals his subsequent convictions.




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                          State v. Diviney


            ISSUES AND STANDARDS OF REVIEW

¶18 Diviney raises three issues for our consideration. First, he
contends the trial court erred in denying his motion for a
directed verdict on the charge for domestic abuse in a child’s
presence. “We review the [trial] court’s denial of a motion for
directed verdict for correctness,” and where Diviney “challenges
the denial . . . based on the sufficiency of the evidence, the
applicable standard of review is highly deferential,” and we
“will uphold the [trial] court’s denial if, when viewed in the light
most favorable to the State, some evidence exists from which a
reasonable jury could find that the elements of the crime have
been proven beyond a reasonable doubt.” State v. Barner, 

, 

 (cleaned up). Second, Diviney
contends the trial court abused its discretion by excluding
evidence Diviney proffered to impeach Ella. “We review the trial
court’s admissibility determination for abuse of discretion.” State
v. Gomez, 

, 

 (cleaned up). Third,
Diviney contends that defense counsel rendered ineffective
assistance in adjusting the defense strategy in response to the
trial court’s ruling on the evidence. “An ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law.”4 State v. Bowen, 

, 

 (cleaned up).



4. Diviney also requests that we remand this case under Utah
Rule of Appellate Procedure 23B for the purpose of entering into
the record additional facts necessary to support another claim
for ineffective assistance of counsel. “We grant such motions
only upon 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. Curtis,

, 

 (cleaned up). “Fact
allegations are insufficient unless the defendant presents this
                                                   (continued…)


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                         State v. Diviney


                           ANALYSIS

                 I. Motion for Directed Verdict

¶19 Diviney contends the trial court erred in denying his
motion for a directed verdict regarding domestic violence in the
presence of a child because, he claims, insufficient evidence
supported the charge. He asserts that each element of the statute
cannot have been met because even though “Diviney knew that
[the child] was in the apartment,” because the child was asleep,
“Diviney did not know that [the child] could ‘see or hear an act


(…continued)
court with the evidence [the defendant] intends to present on
remand and explains how that evidence supports an ineffective
assistance of counsel claim.” Id. ¶ 18 (cleaned up). Here, Diviney
proposes to supplement the record with facts consisting of his
medical documents from the day after the incident, which he
asserts would have supported his story “that he and [Ella] were
injured in a fight with an intruder.” While Diviney’s motion
includes medical documents not included in the record, and
although the findings reported on those documents may not be
speculative, Diviney has not explained how this evidence
supports an ineffective assistance of counsel claim because he
does not show how defense counsel’s failure to introduce this
evidence prejudiced his case. Diviney asserts that the medical
documents provide physical evidence for his version of events,
but he does not show how this is so. Specifically, Diviney has not
pointed to any testimony offered at trial or proposed expert
testimony that would connect his version of events to the
findings listed in the medical documents. Without such a
connection, any supposed effect this information would have on
the jury is speculative, and therefore our “confidence in the
outcome of the trial is [not] undermined.” See State v. Popp, 

, 

 (cleaned up).




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                         State v. Diviney


of domestic violence.’” (Quoting 

(1)(c)(ii) (LexisNexis 2017).)5 In other words,
Diviney’s argument concedes that the child was in a room in the
apartment with the door slightly open but maintains that the
uncontested fact that the child was sleeping means that the
definition of “in the presence of a child” could not be satisfied.6
We disagree with Diviney’s interpretation of the statute and
conclude that “some evidence exists from which a reasonable
jury could find that the elements of the crime have been proven
beyond a reasonable doubt.” See State v. Barner, 

, 

 (cleaned up).

¶20 “When interpreting statutory provisions, we first look to
the plain language of the statute,” State v. Rincon, 

, 

 (cleaned up), and “in so doing, we
presume that the legislature used each word advisedly,” Scott v.
Scott, 

, 

 (cleaned up). If that
language allows us to understand the legislature’s meaning, “no
other interpretive tools are needed, and our task of statutory
construction is typically at an end.” 

 (cleaned up). We
conclude that to be the case here.




5. The statutory language in effect at the relevant time remains in
effect today. Thus, we cite the current code for convenience.

6. In so doing, Diviney relies on In re K. D., 

 (Ga.
Ct. App. 2018), a case in which the court found that an incident
of assault “took place outside the presence of the children, as the
uncontradicted record showed that they were inside the house
asleep” and the assault occurred outside of the house. 

.
That case is easily distinguished from this case where the abuse
occurred inside the same apartment in which the child slept with
the door slightly open.




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                          State v. Diviney


¶21 Regarding domestic violence in the presence of a child,
Utah Code section 76-5-109.1(1)(c) provides,

      “In the presence of a child” means:

          (i) in the physical presence of a child; or

          (ii) having knowledge that a child is present
          and may see or hear an act of domestic
          violence.

Diviney concedes that the child “was asleep in his crib in his
bedroom” with the door slightly open and that “the acts of
domestic violence occurred in another room” in the same
apartment. Thus, the focus rests on whether the language “may
see or hear” includes a child who is asleep in a nearby room with
the door open. See 

 § 76-5-109.1(1)(c)(ii). We conclude that it
does.7

¶22 Diviney asserts that Ella’s “testimony supported that [the
child] could not see or hear any act of domestic violence because
he was asleep during the entire incident.” However, his
argument glosses over not only the statute’s use of the word
“may,” but the trial court’s focus on that word as well. See id.
“The plain, ordinary, and accepted meaning of the word may is
permissive or discretionary, generally indicating that an

7. We also note that the parties appear to concede that the
circumstances here do not fall within the definition in Utah Code
section 76-5-109.1(1)(c)(i), and instead meaningfully discuss only
whether this case falls within the scope of section
76-5-109.1(1)(c)(ii). We, however, do not adopt the legal position
espoused by the parties’ concession and we do not opine on
whether section 76-5-109.1(1)(c)(i) applies here; instead we
analyze only whether these circumstances fall within the scope
of section 76-5-109.1(1)(c)(ii).




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                         State v. Diviney


individual is either permitted or has a possibility to do
something.” Holmes Dev., LLC v. Cook, 

, 

 (cleaned up) (emphasis added). The statute therefore
requires that the jury determine only that a child was present
and that a possibility existed that the child would or could hear
or see the domestic violence. And to deny the motion for a
directed verdict, the trial court needed to find only that some
evidence existed that supported that element.

¶23 The State presented such evidence here. Ella testified that
the child’s bedroom door was “cracked open” so she could
“always hear” him. Moreover, because she had spent the night
before with the child, behind a closed door, she was able to
testify that even with the door closed, one could hear what was
happening in other parts of the apartment. In addition, the mere
fact that the testimony suggests that the child was asleep during
the events does not eliminate the possibility that the child could
have heard the abuse. At any moment the child could have
woken up, either naturally or due to the commotion in the other
room; or the child may have, in fact, woken up, heard the
domestic violence, and returned to sleep without Diviney or Ella
knowing; and we note that were it not for the fact that many
human beings can hear while they are asleep, the ongoing use of
sound-based alarms would remain an unexplained curiosity.

¶24 Here, the possibility existed that the child would hear the
domestic violence happening just beyond his open bedroom
door. As such, the trial court did not err in denying the motion
for a directed verdict.

  II. Exclusion of Evidence and Defense Counsel’s Adjustment

¶25 Diviney also contends that the trial court “abused its
discretion when it did not appear to allow extrinsic evidence of
[Ella’s] drug use” and that defense counsel rendered ineffective
assistance in not impeaching Ella sooner, in not arguing “that the
rules of evidence allowed him to impeach [Ella] with extrinsic


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                          State v. Diviney


evidence” (and, to the extent that it constitutes invited error, in
proposing an alternative strategy in light of the court’s ruling).
But even assuming without deciding that the court erred and
that defense counsel rendered deficient performance, each of
these arguments falls short for the same reason: lack of
prejudice. See, e.g., Honie v. State, 

, 

(“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address [a
defendant’s] claims under either prong.”); State v. Leech, 

, 

 (noting that even if an error occurs,
prejudice still must be shown).

¶26 “Utah law places the burden on the defendant to prove
that a preserved error is harmful.” Leech, 

, ¶ 43
n.7; cf. Utah R. Crim. P. 30(a) (“Any error . . . which does not
affect the substantial rights of a party shall be disregarded.”).
Moreover, defendants bear the burden of showing that they
have been prejudiced by counsel’s deficient performance. State v.
Scott, 

, 

; cf. Utah R. Crim P. 30(a).
For a preserved error, showing prejudice “requires a showing of
a reasonable likelihood that the [alleged error] altered the jury
verdict.” Leech, 

 (cleaned up). For
ineffective assistance, showing prejudice requires “the defendant
to demonstrate a reasonable probability that the outcome of [the]
. . . case would have been different absent [the alleged] error.”
Scott, 

. Thus, where a defendant raises a
preserved error argument and an ineffective assistance of
counsel argument based on the same alleged issue, and we
resolve the argument based on a lack of prejudice, we need
undertake only a single analysis. See 

¶27 As an initial matter, Diviney asserts that extrinsic
evidence of Ella’s drug use would have persuaded the jury that
she was motivated to lie to prevent him from reporting her drug
use to Child Protective Services. But although that may have
been Diviney’s initial theory of the case, the State points out that



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                         State v. Diviney


when Diviney decided not to testify, defense counsel
“abandoned the drug-based theory” in favor of attacking Ella’s
credibility. Without Diviney’s testimony about Ella’s “supposed
drug use at the time of the crime,” no evidence supported that
Ella was, in fact, using drugs at the time of the abuse, and
evidence of a four-year-old criminal record for possession of
“psychotic     chemicals”    and     a   months-old      positive
methamphetamine test does not fill that gap.

¶28 Moreover, when it appeared that Ella denied having used
drugs generally, defense counsel received permission to follow
up on that issue. After being asked whether this was the only
time she had used drugs, Ella responded, “In my lifetime? No.”
In other words, regardless of whether the court allowed specific
extrinsic evidence, defense counsel made his main point:
arguably contrary to her earlier testimony, Ella admitted she
had, in fact, used drugs outside of the Las Vegas trip. Thus,
Diviney obtained the same evidentiary posture he would have
garnered had the extrinsic drug-use evidence been allowed; that
is, he still succeeded in impeaching her testimony on this issue.
And although Diviney argues that this admission “was no
substitute for powerful evidence that [Ella] had used drugs in
the past and recently,” we see these additional details as
ultimately inconsequential in comparison to her admission that
she had otherwise used drugs. We remain unpersuaded that this
remote extrinsic evidence provided any more materially
significant evidence than Ella herself had already provided
when she testified.

¶29 And, even if the information had been allowed, we do not
believe this would have made the difference Diviney asserts.
According to Diviney, because “[t]he State’s case depended on
[Ella’s] credibility,” all that was needed for the jury to “decide
whether [Ella] was being truthful on the witness stand” was “[a]
sufficient opportunity for the defense to impeach” her. But in his
brief, Diviney has demonstrated many inconsistencies defense



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                         State v. Diviney


counsel “sussed out” during Ella’s examination. Diviney asserts
that during her examination, defense counsel elicited
inconsistencies regarding the plate Diviney threw, the extent of
Ella’s bleeding, the number of times Diviney hit her, their child’s
location at different times, the timing of the abuse, and many
other things. And yet, despite all these inconsistencies, Diviney
maintains that the additional extrinsic drug-use evidence would
have infused the case with sufficient doubt that the jury likely
would have acquitted him. We remain unconvinced and
conclude that among all the other inconsistencies, this additional
drug-use evidence would not have likely tipped the scales in
Diviney’s favor.

¶30 In light of Ella’s overarching admission regarding her
drug use, a four-year-old criminal record or a months-old
positive methamphetamine test were not reasonably likely to
have changed the jury’s verdict. Accordingly, we conclude that
any error regarding this evidence’s exclusion did not prejudice
Diviney.


                         CONCLUSION

¶31 Some evidence supported the jury’s verdict, and thus the
trial court properly denied Diviney’s motion for a directed
verdict. Further, the court’s exclusion of the impeachment
evidence and defense counsel’s adjustments in light of that
ruling did not prejudice Diviney. Accordingly, we affirm.




20190778-CA                    16