Issues on Appeal
Bush was originally convicted of a third degree felony criminal mischief with a domestic violence enhancement. Bush appealed the judge’s denial of the defense directed verdict motion and ineffective assistance by defense counsel.
Case Facts
In 2020, Jeffrey Bush put out an ad to rent an extra bedroom out in his house. Interested in the room, Gabby replied to Bush’s ad and moved in March. Gabby and Bush found themselves having a sexual relationship almost immediately after she moved in.
Within 9 days of Gabby moving in, Bush invited her parents to the house for dinner. Bush claims this was an attempt to get her to move out of the house, though they had sexual relations after the parents left. At the end of the night, Bush went up to his own room and locked the door to go to bed. Gabby wanted to talk to Bush and hug him, and this led to an argument happening through the door.
Bush was able to record bits of the conversation on his cellphone, and he eventually opened the door for Gabby. He tried to move into the bathroom to make a call from his work phone. Gabby followed him into the bathroom with her own phone in hand, which Bush mistakenly believed was his own phone that he had recorded the conversation on. He grabbed the phone and realized it wasn’t his, so he smashed it against the door.
Beyond the destruction of Gabby’s phone, she also stated that Bush had pulled her down a flight of stairs by her hair and gave her death threats. She also alleged that he used his arm to push her throat and chest.
Opinion and Analysis
Bush believes that a directed verdict was necessary due to a lack of evidence, specifically in proving how much Gabby’s phone was actually worth. However, during a cross-examination, Bush admitted to paying Gabby 600 dollars after the incident to pay for the damages. State v. McCallie (2016 UT App 4) considers the fact that sufficient evidence can come from both the state and the defense. Because Bush provided information directly supporting that his damages exceeded 500 dollars, this grievance was denied.
To further support the idea that Bush was not entitled to appealing on the failure of a directed verdict, the court cited State v. Stockton which was the beginning of the “waiver rule”. The idea behind this rule is that a defense presenting evidence after the denial of a directed verdict waives the right of a motion for a directed verdict. Rather than resting their case, the defense offered their own evidence to the court, accidentally fixing any deficiencies in the State’s case.
Bush also appealed his counsel’s inability to make various arguments he believes would have helped his case. His main complaint was his counsel did not argue he may have destroyed Gabby’s phone by accident. Despite this being true, State v. Forbush (2024 UT App 11) puts forward that a poor counsel performance is only proved by showing that the defense was both weak, and that better strategy could have changed the outcome of the trial. The court responds to these claims with evidence from Bush’s own statements where he explained that he smashed the phone to try to make Gabby leave. Additionally, there were no findings to indicate that alternative action from the legal counsel would have changed the court’s guilty finding.
Conclusions
The appeals court affirms Bush’s felony conviction of criminal mischief. The appeals court found there to be sufficient evidence after Bush himself remedied any possible motion for a directed verdict by offering additional evidence, and that there was criminal intent in the destruction of the phone.