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THE UTAH COURT OF APPEALS
CEDAR CITY,
Appellee,
v.
JENNIFER LYNN MCCRAW,
Appellant.
Opinion
No. 20230747-CA
Filed August 14, 2025
Fifth District Court, Cedar City Department
The Honorable Matthew L. Bell
No. 221500477
Dylan T. Carlson, Debra M. Nelson, Benjamin Miller,
and Wendy M. Brown, Attorneys for Appellant
Randall K. McUne, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 After a ten-minute bench trial held in her absence, Jennifer
Lynn McCraw was found guilty of criminal mischief and
domestic violence in the presence of a child. On appeal, McCraw
contends that her trial counsel (Counsel) rendered
constitutionally ineffective assistance in several respects. One
claim is dispositive. Because Cedar City (the City) presented no
evidence that McCraw damaged or destroyed the property of
another—an essential element of criminal mischief, which was
also the predicate offense for the domestic violence charge—
Counsel’s failure to move for a directed verdict was deficient and
prejudicial. We therefore vacate McCraw’s convictions and
remand this matter for a new trial.
Cedar City v. McCraw
BACKGROUND 1
¶2 In October 2021, McCraw and her girlfriend, Victoria, 2
argued inside their shared residence located in Cedar City, Utah.
The dispute escalated to the point that McCraw threw and
shattered plates on the floor in front of Victoria’s young child. The
City charged McCraw in the Iron County Justice Court with
criminal mischief and domestic violence in the presence of a child;
the case was later transferred to the Fifth District Court.
¶3 The bench trial was continued once and reset. When the
trial was finally convened, McCraw did not appear. Counsel
briefly left the courtroom to try to contact her client, returned, and
reported that McCraw was unavailable. Counsel explained that
McCraw was experiencing homelessness and had relocated out of
state to find shelter. Counsel did not argue that McCraw’s absence
was involuntary or seek to continue the trial, and the trial
proceeded without her.
¶4 Before any witnesses were called, Counsel agreed the City
could proceed entirely by proffer 3 and indicated that she did not
intend to cross-examine any of the City’s witnesses, even though
1. Following a bench trial, “we recite the facts from the record in
the light most favorable to the findings of the trial court and
present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Cowlishaw, 2017 UT App 181, ¶ 2,
405 P.3d 885 (quotation simplified).
2. A pseudonym.
3. “When evidence is going to be received substantively by
proffer, the proffering party states what the witness would testify
to if called . . . , and if the opposing party consents, a court can
accept the proffer.” Krajeski v. Krajeski,
2025 UT App 19, ¶ 47 n.8,
565 P.3d 544, cert. denied, July 2, 2025 (No. 20250403).
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the witnesses were present. The prosecutor proffered the
testimony of Victoria and two police officers. The City’s proffers
established that McCraw broke and damaged plates during an
argument, that Victoria’s minor child witnessed this altercation,
and that McCraw confessed to arguing with Victoria and breaking
the plates. No proffer established to whom the plates belonged.
After the City rested, the trial court asked Counsel, “[D]o you
have anything to offer”? She replied, “No, Judge.” Counsel called
no witnesses and made no closing argument. The court found
McCraw guilty on both counts, and McCraw timely appealed.
ISSUES AND STANDARD OF REVIEW
¶5 McCraw raises several claims of ineffective assistance of
counsel, and we address the merits of only one. McCraw contends
that Counsel performed deficiently by failing to move for a
directed verdict after the City rested its case without proving the
damaged plates were owned by someone other than McCraw, an
essential element of the criminal mischief charge. McCraw further
alleges that Counsel’s failure prejudiced her. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Wall, 2020 UT App 168, ¶ 13,
479 P.3d 355 (quotation simplified).
ANALYSIS
¶6 McCraw argues that Counsel’s complete failure at trial to
make any motions, pursue any defensive tactics, or otherwise test
the prosecution’s case in any meaningful way violated her Sixth
Amendment right to effective assistance of counsel. Specifically,
McCraw argues that Counsel performed deficiently in failing to
argue that McCraw’s absence from the trial was involuntary and
to request a continuance of the trial, in failing to subject the City’s
case to any meaningful adversarial testing, in failing to move for
a directed verdict, and in failing to challenge the constitutionality
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Cedar City v. McCraw
of the criminal mischief statute. We are persuaded that Counsel’s
failure to move for a directed verdict on the criminal mischief
charge provides a basis to vacate McCraw’s convictions and grant
her a new trial, and we therefore do not address the merits of her
other ineffective assistance of counsel claims. 4
¶7 Applying the test set forth in Strickland v. Washington, 466
U.S. 668 (1984), to prevail on a claim of ineffective assistance of
counsel, McCraw must show (1) that Counsel performed
deficiently and (2) that she was prejudiced as a result. See
id. at
687. To show deficient performance, McCraw must overcome the
presumption that Counsel’s actions fell “within the wide range of
reasonable professional assistance.”
Id. at 689. “The court gives
trial counsel wide latitude in making tactical decisions and will
not question such decisions unless there is no reasonable basis
supporting them.” State v. Clark,
2004 UT 25, ¶ 6,
89 P.3d 162
(quotation simplified). Moreover, “the question of deficient
4. Though there is no claim of trial court error here, we would be
remiss if we did not note that because a defendant charged with a
crime has a constitutional and statutory right to be present at trial,
it is incumbent upon the trial court to ensure that a non-appearing
defendant has voluntarily absented herself from the trial. See State
v. Wanosik,
2003 UT 46, ¶ 13,
79 P.3d 937 (“The right to appear and
defend in person is a constitutional one, but may be waived under
certain circumstances if the defendant voluntarily absents himself
from the trial. However, that voluntariness may not be presumed
by the trial court.” (quotation simplified)). “It is impermissible to
apply an automatic presumption of voluntariness based on
nothing more than non-appearance at a hearing of which a
defendant had notice.” State v. Marshall,
2025 UT App 79, ¶ 19,
571
P.3d 824 (quotation simplified). Moreover, “[n]o one denies the
general principle” that “the onus is on the [prosecution] to show
voluntariness of absence and lack of consent to a trial in absentia.”
State v. Ross,
655 P.2d 641, 642 (Utah 1982) (per curiam), cited in
Marshall,
2025 UT App 79, ¶ 19.
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performance is not whether some strategy other than the one that
counsel employed looks superior given the actual results of trial.
It is whether a reasonable, competent lawyer could have chosen
the strategy that was employed in the real-time context of trial.”
State v. Nelson, 2015 UT 62, ¶ 14,
355 P.3d 1031 (quotation
simplified). And “even where a court cannot conceive of a sound
strategic reason for counsel’s challenged conduct, it does not
automatically follow that counsel was deficient. . . . [T]he ultimate
question is always whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable.” State
v. Scott,
2020 UT 13, ¶ 36,
462 P.3d 350; see also State v. Ray,
2020
UT 12, ¶¶ 34–36,
469 P.3d 871.
¶8 To establish prejudice under the second prong of the
Strickland test, McCraw must also demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Strickland,
466 U.S. at 694. In assessing whether a
defendant has met this standard, we “consider the totality of the
evidence before the judge or jury and then ask if the defendant
has met the burden of showing that the [verdict] reached would
reasonably likely have been different absent the errors.” State v.
Garcia,
2017 UT 53, ¶ 28,
424 P.3d 171 (quotation simplified).
A. Deficient Performance
¶9 McCraw argues that based upon the evidence that was
proffered at trial, it was objectively unreasonable for Counsel to
fail to move for a directed verdict once the City rested its case. The
City charged McCraw with criminal mischief for breaking and
damaging plates during an argument. It also charged her with
domestic violence in the presence of a child, for which the
criminal mischief charge was a predicate offense. To obtain
convictions, then, the City had to produce evidence that McCraw
“intentionally damage[d], deface[d], or destroy[ed] the property
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of another.” Utah Code § 76-6-106(2)(c) (2021). 5 But no evidence
was presented that the plates damaged and destroyed by McCraw
were “the property of another.” The proffers of the anticipated
testimony of Victoria and the responding officers never addressed
ownership of the plates.
¶10 The City is correct that when reviewing the sufficiency of
the evidence presented at trial, an appellate court will consider all
the inferences that can be reasonably drawn from the evidence
and will affirm a conviction as long as “some evidence exists from
which a reasonable [factfinder] could find that the elements of the
crime had been proven beyond a reasonable doubt.” State v. Doyle,
2018 UT App 239, ¶ 11,
437 P.3d 1266 (quotation simplified). But
we agree with McCraw that the City produced no evidence as to
who owned the plates. As such, the inference the City advances
that Victoria owned the plates because she continued to live in the
home after the incident would not have been reasonable.
Consequently, Counsel should have sought dismissal of the
charges. See State v. Baer,
2019 UT App 15, ¶ 7,
438 P.3d 979 (“If
the [prosecution] presents no competent evidence from which a
reasonable [factfinder] could find the elements of the relevant
crime, then trial counsel should move for a directed verdict and
the failure to do so would likely constitute deficient
performance.” (quotation simplified)).
¶11 The City counters that it was reasonable for Counsel to
forgo a directed verdict motion when such a motion would have
been futile because the trial court appeared satisfied that all
5. The criminal mischief statute has been amended since McCraw
was charged in 2021. The “intentionally damages, defaces, or
destroys the property of another” language is now found in Utah
Code section 76-6-106.1(2)(b). A violation of that section is still a
predicate offense for a commission of domestic violence in the
presence of a child charge. See Utah Code §§ 76-5-114(2), 77-36-
1(4)(b)(xiv).
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elements of the charges had been met. The City contends that such
is the case because the court did not ask any clarifying questions
about ownership of the plates when the court had earlier sua
sponte solicited information about an element of the domestic
violence charge. But a court’s unspoken assumption cannot
excuse the prosecution’s burden to prove each element of criminal
mischief beyond a reasonable doubt. Where a gap exists in the
evidence, reasonable defense counsel must challenge that lack of
evidence. Accordingly, we agree with McCraw that Counsel’s
silence was objectively unreasonable and therefore constituted
deficient performance.
B. Prejudice
¶12 McCraw must also demonstrate that she was prejudiced by
Counsel’s deficient performance. To do this, she “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. And when assessing
such a claim, we may consider the counterfactual scenario of
“what would have happened but for the ineffective assistance.”
Ross v. State,
2019 UT 48, ¶ 76,
448 P.3d 1203. So viewed, had
Counsel moved for a directed verdict at the close of the City’s case
and brought attention to the lack of proof on this element, the trial
court would have been obliged to grant the motion. The City
never “established a prima facie case against the defendant by
producing believable evidence of all the elements of the crime
charged.” State v. Montoya,
2004 UT 5, ¶ 29,
84 P.3d 1183
(quotation simplified). Here, the City’s proffer did not allege any
evidence about who owned the damaged plates. Therefore, the
criminal mischief charge could not have withstood a motion for a
directed verdict. And without the criminal mischief conviction,
the City concedes that the domestic violence count fails as well.
The reasonable probability of an acquittal thus satisfies Strickland
prejudice.
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¶13 True, if Counsel had moved for a directed verdict and
brought the gap in the evidence to the attention of the City and
the trial court, the court might have let the City reopen its case to
allow the presentation of additional evidence. “A motion to
reopen to take additional testimony when a case has been
submitted to the court, but prior to the entry of judgment, is
addressed to the sound discretion of the court.” Lewis v. Porter, 556
P.2d 496, 497 (Utah 1976). “The word ‘discretion’ itself imports
that the action should be taken with reason and in good
conscience, and with an understanding of and consideration for
the rights of the parties, for the purpose of serving the always
desired objective of doing justice between them.” Davis v. Riley,
437 P.2d 453, 455 (Utah 1968). But discretion is not certainty, and
reopening is never guaranteed. Given the evidentiary void, there
is at least a reasonable probability that had Counsel moved for a
directed verdict, the trial court would have dismissed the charges.
CONCLUSION
¶14 Counsel should have recognized that the City rested its
case without proving every element of criminal mischief and
should have taken some action. And McCraw was prejudiced by
Counsel’s failure to act. Accordingly, we vacate McCraw’s
convictions and remand this matter for a new trial.
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