"After a Ten-Minute Bench Trial Held in Her Absence" …

defendant "was found guilty of criminal mischief and domestic violence"—yet the prosecution "presented no evidence that [she] damaged or destroyed the property of another—an essential element of criminal mischief, which was also the predicate offense for the domestic violence charge."

From Cedar City v. McCraw, decided last week by the Utah Court of Appeals (Judge Michele M. Christiansen Forster, joined by Judges Gregory K. Orme and David N. Mortensen):

In October 2021, McCraw and her girlfriend, Victoria [a pseudonym], 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.

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.

Before any witnesses were called, Counsel agreed the City could proceed entirely by proffer and indicated that she did not intend to cross-examine any of the City's witnesses, even though the witnesses were present. {"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."} 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….

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 of the criminal mischief statute.

{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 (Utah 2003) ("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."). "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." 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."} …

[T]he 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…. "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." …

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." And when assessing such a claim, we may consider the counterfactual scenario of "what would have happened but for the ineffective assistance."

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." …

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." "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." 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….

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….

Dylan T. Carlson (Utah Indigent Appellate Defense) represents McCraw.