The Appellate Group

State v. Levering

State v. Levering, 2020 UT App 82 (Christiansen Forster, J.)


After the defendant’s ex-girlfriend kicked him out and locked the door, the defendant forcibly opened the door and assaulted the ex-girlfriend in front of her child. The defendant was convicted of assault, domestic violence in the presence of a child, and criminal trespass. On appeal, he argued that counsel was ineffective for failing to object the three separate jury instructions and that the district court erred when it failed to allow him to admit evidence of the victim’s violent acts against him that occurred after the event in question. The Utah Court of Appeals affirmed, holding:

  • Trial counsel did not err in failing to object to instructions 16 & 17 on the ground that they failed to include as an element that the State had the burden to disprove that the defendant was acting in self defense. But even if instructions 16 & 17 were erroneous for failing to more clearly establish that the State had the burden of disproving that the defendant was acting in self defense when he attacked the victim, the defendant was not prejudiced by the error. The defendant admitted he was not responding to a threat. He had been kicked out of the residence forcibly and forced his way back in through a locked door. The defendant presented no evidence that he reasonably believed the victim presented an imminent danger to him once he was outside, nor did he claim it was necessary for him to force his way back in to stop violence against him. Even if the burden of proof on self defense were more clearly stated in the jury instructions, it is unlikely the jury would have acquitted the defendant of assault.
  • Trial counsel did not err in failing to object to instruction 14 on the ground that it did not include a defense to criminal trespass. Criminal trespass is available if (1) the property was open to the public at the time, and (2) the actor complied with all lawful conditions imposed on access to or remaining on the property. The defendant failed to prove that the residence was open to the public, obviating the need to show that he lawfully accessed the property. The defendant himself testified that the house was locked that day and that the windows were screwed shut, as was the norm. The defendant cited no cases suggesting that “open to the public” applied to residences that are private homes—or that “the public” could also be read as a party of one. And the residence was not even open to him. He was, therefore, not prejudiced by instruction 14.
  • The district court did not err in omitting victim’s admissions from a protective order hearing that she had committed violent acts against him. Even if the district court should have admitted those statements, their omission did not prejudice the defendant. The jury heard other testimony that the victim was violent against the defendant. The victim herself admitted that she was violent when he brought drugs into her house. The defendant failed to explain how the addition of that evidence would have made a difference to the outcome of his case.

Read the full court opinion