This opinion is subject to revision before
publication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah,
)
OPINION
)
(For Official Publication)
Plaintiff and Appellee,
)
)
Case No. 20030347-CA
v.
)
F I L E D
)
(March 16, 2006)
Darius Peni Malaga,
)
)
2006 UT App 103
Defendant and Appellant.
)
-----
Third District, Salt Lake Department, 021906485
The Honorable Anthony B. Quinn
Attorneys:
Elizabeth Hunt, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake
City, for Appellee
-----
Before Judges Billings, Davis, and Orme.
DAVIS, Judge:
1
Darius Malaga (Defendant) appeals his conviction for murder,
aggravated kidnaping, aggravated robbery, and conspiracy to
commit murder. We affirm.
BACKGROUND
2
These appellate proceedings arise out of a trial held in
January 2003, in which Defendant was convicted of the murder of
Amy Tavey, as well as the conspiracy to murder and the aggravated
kidnaping and aggravated robbery of Keith Williams. Codefendant
Silia Olive was convicted of aggravated kidnaping and felony
murder.
3
On May 3, 2002, Olive and her minor friend, A.M., lured
Williams and his girlfriend Tavey to Olive's home in order to
assault, kidnap, and murder Williams in retribution for something
Williams allegedly had done. Immediately upon entering Olive's
home, Williams was ambushed--Defendant hit him over the head with
a gun, others joined in beating him, and Williams's wallet,
necklace, ring, cell phone, watch, and car keys were stolen.

Williams's hands and mouth were then bound with duct tape and he
was forced to get into the trunk of his own vehicle, Defendant
all the while telling Williams that Defendant was going to kill
him. Tavey, meanwhile, was forced into another vehicle with
Olive, A.M., and two other people who had been in Olive's home
during the assault.
4
The two vehicles then left Olive's home, with Defendant
driving Williams's vehicle and Olive driving the other vehicle.
The cars drove in tandem towards a residence where A.M. was
staying, which was near the Jordan River. Not long into the
trip, Williams was able to free his hands from the duct tape, pop
the trunk from the inside, and escape undetected from his own
car. Meanwhile, in the other car, Tavey was being assured that
nothing would happen to her if she "[kept her] mouth shut."
5
As the two cars approached the residence, Defendant pulled
up next to Olive. Defendant briefly spoke to Olive and then
drove away. Olive parked the car and let A.M. get out. A.M.
entered the residence, while Tavey and the three others stayed in
or near the car. Approximately thirty minutes later, Defendant
returned. He appeared very angry and agitated, as he had
apparently discovered Williams's escape. He demanded to know
where Tavey was, then pulled Tavey from the car and led her away
by her arm. A few minutes later, Olive and the others in the car
heard multiple gunshots. Inside the residence, A.M. also heard
gunshots.
6
Tavey's body was found the next morning floating near the
north shore of the Jordan River. An autopsy revealed that she
had been killed by gunshots fired into her back that penetrated
her heart and lungs. On January 29, 2003, Defendant was
convicted of the murder of Tavey, as well as the conspiracy to
murder and the aggravated kidnaping and aggravated robbery of
Williams. Defendant was sentenced to the maximum sentence
possible on each count, the sentences to run consecutively.
Defendant timely appealed.
ISSUES AND STANDARDS OF REVIEW
7
Defendant argues that many of the instructions given to the
jury constituted either trial errors or structural errors. See
Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (defining trial
error as "simply an error in the trial process itself" and
structural error as a "structural defect affecting the framework
within which the trial proceeds"). Generally, "whether a jury
instruction correctly states the law presents a question of law
which we review for correctness." State v. Weaver, 2005 UT
49,6, 122 P.3d 566 (quotations, citation, and alteration
20030347-CA
2

omitted). Here, however, Defendant concedes that he
affirmatively approved the jury instructions at trial, and
therefore argues that we should address purported errors made in
the jury instructions under the doctrines of plain error/manifest
injustice, exceptional circumstances, or ineffective assistance
of counsel. For the reasons discussed below, we review the jury
instructions only under the ineffective assistance of counsel
doctrine.
8
Defendant first requests that we review the jury
instructions under the plain error/manifest injustice doctrine.
See Utah R. Crim. P. 19(e) ("Unless a party objects to an
instruction . . . , the instruction may not be assigned as error
except to avoid a manifest injustice."); State v. Casey, 2003 UT
55,40, 82 P.3d 1106 (equating manifest injustice to the plain
error standard). We decline to do so because Defendant
affirmatively approved of the jury instructions, and he conceded
in his reply brief that the invited error doctrine precludes our
examining the purported structural and trial errors under the
plain error/manifest injustice doctrine. See State v. Hamilton,
2003 UT 22,54, 70 P.3d 111 (holding that jury instruction may
not be assigned as error "if counsel, either by statement or act,
affirmatively represented to the court that he or she had no
objection to the jury instruction"); see also State v.
Geukgeuzian, 2004 UT 16,8-12, 86 P.3d 742 (holding that invited
error doctrine precluded court from addressing purported
structural error); State v. Chaney, 1999 UT App 309,52-55, 989
P.2d 1091 (refusing to review elements instruction that omitted
mens rea, despite the fact that such an instruction constituted
reversible error, because defendant invited error); State v.
Perdue, 813 P.2d 1201, 1205 (Utah Ct. App. 1991) (refusing to
review reasonable doubt instruction that purportedly constituted
structural error because defendant invited the error).
9
Similarly, Defendant cannot rely upon the exceptional
circumstances doctrine. The concept of exceptional circumstances
is "used sparingly, properly reserved for truly exceptional
situations . . . involving rare procedural anomalies." State v.
Irwin, 924 P.2d 5, 11 (Utah Ct. App. 1996) (quotations and
citation omitted). In order to find exceptional circumstances,
Utah authority "requires something much more exceptional than
mere oversight by trial counsel in failing to object" to jury
instructions. Id. "To permit the use of the exceptional
circumstances concept here, we would have to employ it in every
case where there might have been ineffective assistance at trial
. . . ." Id.
10
We will, however, examine Defendant's claims of structural
and trial errors in the jury instructions under the ineffective
assistance of counsel doctrine. "Where, as here, a claim of
20030347-CA
3

ineffective assistance of counsel is raised for the first time on
appeal without a prior evidentiary hearing, it presents a
question of law." State v. Bryant, 965 P.2d 539, 542 (Utah Ct.
App. 1998). "To prevail on a claim of ineffective assistance of
counsel, [Defendant] must show that (1) trial counsel's
performance was objectively deficient and (2) there exists a
reasonable probability that absent the deficient conduct, the
outcome would likely have been more favorable to [Defendant]."
State v. Mecham, 2000 UT App 247,21, 9 P.3d 777 (citing
Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). "The
failure of counsel to make . . . objections which would be futile
if raised does not constitute ineffective assistance." State v.
Whittle, 1999 UT 96,34, 989 P.2d 52 (quotations and citation
omitted).
11
Although there are certain circumstances in which prejudice
may be presumed under Strickland, see Strickland, 466 U.S. at
692, here Defendant has the burden of demonstrating prejudice
despite the fact that he has alleged structural error, see State
v. Cruz, 2005 UT 45,18, 122 P.3d 543 (stating in dicta that "a
defendant claiming constitutional error who did not object at
trial may only argue plain error or ineffective assistance of
counsel on appeal and thus must prove prejudice, even if the
constitutional error claimed on appeal is structural in nature");
State v. Arguelles, 921 P.2d 439, 441-42 (Utah 1996) (naming
circumstances in which prejudice may be presumed, but refusing to
presume prejudice despite the fact that defendant argued that
structural error occurred); see also Batiste v. State, 888 S.W.2d
9, 14-16 (Tex. Crim. App. 1994) (en banc) (declining to hold that
every structural defect is per se exempt from the prejudice prong
of Strickland); State v. Flynn, 527 N.W.2d 343, 353 (Wis. Ct.
App. 1994) ("[E]ven certain structural defects in the trial
mechanism are subject to Strickland's prejudice prong . . . .").
"Further, in cases in which it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, we will do so without addressing whether counsel's
performance was professionally unreasonable." State v. Strain,
885 P.2d 810, 814 (Utah Ct. App. 1994) (quotations and citation
omitted).
12
Defendant also alleges the trial court erred in imposing the
maximum mandatory sentence for aggravated kidnaping without
making findings regarding mitigating factors. See Utah Code Ann.
76-3-201(6)(d) (Supp. 2002). Generally, we review sentencing
decisions "to determine whether the court exceeded its permitted
range of discretion," State v. Diaz, 2002 UT App 288,27, 55 P.3d
1131, and we will reverse only "if we determine that the trial
court has failed to consider all legally relevant factors, or
imposed a sentence that exceeds legally prescribed limits," State
v. Moreno, 2005 UT App 200,8, 113 P.3d 992 (quotations and
20030347-CA
4

citation omitted). However, Defendant concedes that this issue
was not preserved by his trial counsel and therefore asks us to
review this purported error under the plain error or ineffective
assistance of counsel doctrines. Explaining the plain error
standard, we have stated that
to obtain appellate relief from an alleged
error that was not properly objected to, the
appellant must show the following: (i) [a]n
error exists; (ii) the error should have been
obvious to the trial court; and (iii) the
error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more
favorable outcome for the appellant, or
phrased differently, our confidence in the
verdict is undermined.
Casey, 2003 UT 55 at 41 (quotations and citation omitted). As
stated above, "[t]o prevail on a claim of ineffective assistance
of counsel, [Defendant] must show that (1) trial counsel's
performance was objectively deficient and (2) there exists a
reasonable probability that absent the deficient conduct, the
outcome would likely have been more favorable to [him]." Mecham,
2000 UT App 247 at 21 (citing Strickland, 466 U.S. at 687-88).
ANALYSIS
I. Jury Instructions
13
In his opening brief, Defendant argues that the trial
court's reasonable doubt jury instruction was erroneous, and his
trial counsel was ineffective for failing to object to it,
because the instruction contravened State v. Robertson, 932 P.2d
1219 (Utah 1997), overruled on other grounds by State v. Weeks,
2002 UT 98,25 n.11, 61 P.3d 1000.1 However, Robertson has since
been overruled, see State v. Reyes, 2005 UT 33,30, 34, 116 P.3d
305; see also State v. Weaver, 2005 UT 49,7, 122 P.3d 566
(stating that Reyes overruled Robertson); State v. Cruz, 2005 UT
45,21, 112 P.3d 543 (same), and prejudice under Strickland
cannot be demonstrated when an ineffectiveness claim relies on
recently overturned law, see Lockhart v. Fretwell, 506 U.S. 364
1In particular, Defendant argues that the reasonable doubt
jury instruction did not express that the State's proof must
obviate all reasonable doubt and contained impermissible language
indicating that reasonable doubt is not one that is merely
possible.
20030347-CA
5

(1993). Moreover, Defendant has expressly conceded this issue.
Accordingly, we have no occasion to consider it further.
14
Defendant next complains that, "[w]hile all of the charges
against [Defendant] were premised on accomplice liability, none
of the elements instructions . . . required the government to
prove the elements of accomplice liability." Defendant therefore
contends that his trial counsel was ineffective for failing to
object to this purported omission and for failing to challenge
the "stock instructions" regarding accomplice liability.2
However, a defendant cannot show prejudice where, as here, the
allegedly erroneous instructions were "superfluous and not the
basis of the jury's verdict." State v. DeAlo, 748 P.2d 194, 198
(Utah Ct. App. 1987) (discussing accomplice liability
instruction); see also State v. Tinoco, 860 P.2d 988, 991 (Utah
Ct. App. 1993) (affirming assault conviction, even though one
subsection of assault instruction was purportedly erroneous,
because there was no evidence that defendant's behavior fell
under that subsection).
15
Although the information in this case charged Defendant both
as a principal and as an accomplice in the crimes, the State
never pursued Defendant on the theory of accomplice liability at
trial. Rather, it identified Defendant as a principal in the
crimes for which he was charged. Indeed, the jury instruction
regarding accomplice liability was included only because Olive
had been charged as "a party" to the aggravated robbery of
Williams. In other words, the allegedly erroneous instruction
here was "superfluous [respecting Defendant] and not the basis of
the jury's verdict." DeAlo, 748 P.2d at 198. Defendant
2The instruction given to the jury on accomplice liability
stated that "[e]very person, acting with the mental state
required for the commission of the offense who directly commits
the offense, who solicits, requests, commands, encourages, or
intentionally aids another person to engage in conduct which
constitutes an offense shall be criminally liable as a party for
such conduct." Another instruction, requested by counsel for
Olive, stated that "[m]ere presence at the scene of the crime and
knowledge that a crime is being committed are not sufficient to
establish that the defendant aided and abetted the crime, unless
you find beyond a reasonable doubt that the defendant was a
participant and not merely a knowing spectator." Defendant
contends that these two instructions, read together, misled the
jury with regard to the elements (especially the mens rea) and
burden of proof required for accomplice liability.
20030347-CA
6

therefore cannot demonstrate prejudice arising from this alleged
error.3
16
Defendant also complains that the jury instructions
regarding the elements of murder were erroneous because they
omitted the element of depraved indifference, which was charged
in the information, but included an instruction defining "grave
risk of death," which is an element of depraved indifference
homicide.4 However, a defendant cannot show prejudice where, as
here, the trial court conforms the jury instructions to evidence
presented at trial. See, e.g., State v. Stevenson, 884 P.2d
1287, 1292 (Utah Ct. App. 1994) (affirming rape conviction even
though rape instruction did not include the essential element of
nonmarriage of accused and victim because the nonmarriage element
"was never an issue at trial" and "its absence did not prejudice
defendant"); State v. Ellifritz, 835 P.2d 170, 179 (Utah Ct. App.
1992) (affirming conviction where jury instruction and
information deviated, but instruction corresponded to evidence
presented at trial, because "the alleged error in the jury
instruction was not prejudicial").
3Defendant briefly argues that the jury instruction
regarding flight is also erroneous. However, the flight
instruction, which was requested by counsel for Olive, clearly
does not implicate Defendant; in fact, it states that "[t]he
flight of a person immediately after the commission of a crime is
not sufficient in itself to establish her guilt." (Emphasis
added.) Defendant himself concedes that he went to Las Vegas
several days after the commission of the crimes. Because the
allegedly erroneous instruction here was "superfluous and not the
basis of the jury's verdict" against Defendant, State v. DeAlo,
748 P.2d 194, 198 (Utah Ct. App. 1987), Defendant cannot
demonstrate prejudice arising from this alleged error.
4Defendant also argues that the jury instructions regarding
the murder elements were erroneous because they included the
element of unlawfulness, which is not an element of murder.
However, a defendant is not prejudiced by incorrect jury
instructions when the error increases the State's burden by
adding another element to be proven. See State v. Carruth, 947
P.2d 690, 694 (Utah Ct. App. 1997). "Such an error actually
benefits the defendant." Id. (quotations and citation omitted).
Because Defendant cannot demonstrate prejudice under Strickland
v. Washington, 466 U.S. 668, 691-92 (1984), Defendant's
ineffective assistance of counsel claim cannot be premised on
this purported error. See State v. Strain, 885 P.2d 810, 814
(Utah Ct. App. 1994).
20030347-CA
7

17
Here, the trial court simply tailored the jury instructions
to the evidence presented at trial. The information alleged that
Defendant: (1) intentionally or knowingly caused the death of
Tavey; (2) intending to cause serious bodily injury to Tavey,
committed an act clearly dangerous to human life that caused the
death of Tavey; or (3) acting under circumstances evidencing
depraved indifference to human life, engaged in conduct that
created a grave risk of death to Tavey and thereby caused the
death of Tavey. However, at trial, the State's sole theory of
liability was that Defendant intentionally shot Tavey.
Therefore, the trial court instructed the jury that, to convict
Defendant of murder, the jury had to find that Defendant
"intentionally or knowingly" caused the death of Tavey or,
intending to cause serious bodily injury to another, committed an
act clearly dangerous to human life that caused the death of
Tavey. Because the trial court simply conformed the instructions
to the evidence, thereby rendering superfluous the omission of
the depraved indifference element and the inclusion of the grave
risk of death definition, see DeAlo, 748 P.2d at 198, Defendant
cannot demonstrate prejudice arising out of this purported error.
18
Defendant next challenges the jury instructions regarding
conspiracy. "[W]e review jury instructions in their entirety to
determine whether the instructions, taken as a whole, fairly
instruct the jury on the applicable law." State v. Stringham,
957 P.2d 602, 608 (Utah Ct. App. 1998) (quotations and citation
omitted). "So long as the jury is informed what each element is
and that each must be proved beyond a reasonable doubt, the
instructions taken as a whole may be adequate even though the
essential elements are found in more than one instruction."
State v. Laine, 618 P.2d 33, 35 (Utah 1980); see also State v.
Perdue, 813 P.2d 1201, 1203 (Utah Ct. App. 1991) ("[W]e affirm
when the instructions, taken as a whole, 'fairly tender the case
to the jury [even where] one or more of the instructions,
standing alone, are not as full or accurate as they might have
been.'" (second alteration in original) (citation omitted)).
19
Viewing the instructions as a whole, it is clear that
Defendant's complaints regarding the jury instructions have no
merit. Defendant contends that the jury instructions regarding
conspiracy did not state elements such as specific intent and a
meeting of the minds, nor did they instruct that all elements had
to be found beyond a reasonable doubt. Yet Instruction No. 50
stated that, to convict Defendant of conspiracy to commit murder,
the jury had to find that Defendant "conspired to intentionally
and knowingly cause the death of Keith Williams." Instruction
No. 51 defined conspiracy, stating that a defendant is guilty of
conspiracy only if he "intend[ed] that conduct constituting a
crime be performed" and "agree[d] with one or more persons" to
engage in that conduct. Under Instruction No. 50, "each and
20030347-CA
8

every" element of conspiracy had to be proven beyond a reasonable
doubt. Quite simply, the instructions as a whole adequately
informed the jury regarding the elements and burden of proof of
conspiracy.
20
Defendant also challenges the jury instructions regarding
the testimony of Olive, arguing that an instruction directing the
jury "to treat [Olive's] testimony as they would that of any
other witness[]" was erroneous because "Olive was not any other
witness," but was instead an accomplice and an informer.
Although it is true that the trial court instructed the jury that
a defendant's testimony should be given "the same consideration"
as that of other witnesses, the trial court also instructed the
jury that an informer's testimony "must be examined and weighed
. . . with greater care than the testimony of an ordinary
witness" and that an accomplice's testimony should be viewed
"with distrust." Here, Olive was not only a defendant, but also
an informer and accomplice. We cannot assume that, in weighing
Olive's testimony, the jury simply ignored the trial court's
instructions regarding informer and accomplice testimony and
relied solely on the court's instruction regarding how to treat a
defendant's testimony. See State v. Harmon, 956 P.2d 262, 272
(Utah 1998) ("[O]ur judicial system greatly relies on the jury's
integrity to uphold the jury oath, including its promise to
follow all of the judge's instructions."). Viewing the
instructions in their entirety, we cannot say the trial court
erred in instructing the jury regarding how to weigh Olive's
testimony.
21
Defendant finally contends that his counsel was ineffective
in failing to challenge the murder causation instruction, arguing
that the instruction was erroneous "because it failed to define
. . . the concept of intervening cause." Defendant argues that,
under State v. Lawson, 688 P.2d 479 (Utah 1984), "it is
appropriate to instruct the jury that the defendant's act is not
considered the proximate cause of the result, if the result is
caused by the act of a third party, which third party action was
reasonably unforeseeable by the defendant." However, although
Lawson allows for jury instructions regarding intervening causes,
it certainly does not mandate them. See id. at 481-82. And
where "there is no reasonable basis in the evidence to support
the defense or its essential components, it is not error for the
trial judge to . . . refuse to instruct the jury as to the
defense." State v. Harding, 635 P.2d 33, 34 (Utah 1981); see
also State v. Brown, 607 P.2d 261, 265-66 (Utah 1980) (affirming
trial court's refusal to give self-defense instruction where
there was "no credible evidence that defendant might have been
justified in using deadly force to protect himself or that he
reasonably believed himself to be in danger").
20030347-CA
9

22
Here, the murder causation instruction actually did instruct
the jury regarding intervening causes--it noted that the
proximate cause of an injury must be "unbroken by an efficient
intervening cause," that proximate cause exists only "through a
chain of natural effects and causes unchanged by human action,"
and that a defendant can be relieved of liability if other causes
are "the sole proximate cause of the death" of the victim.
Furthermore, Defendant presented no evidence at trial that,
although he removed Tavey from the car and took her down to the
river on the night she died, another person unforeseeably came
upon them and shot her. Instead, Defendant's defense at trial
was that someone else took Tavey from the vehicle and killed her,
a theory which does not implicate intervening causes at all.
Because there was no evidence presented that a third party killed
Tavey after Defendant had removed her from the car and taken her
to the river, the trial court did not err by failing to
separately instruct the jury on intervening causes.
23
In conclusion, the trial court's jury instructions regarding
conspiracy and murder causation were not erroneous, nor did the
trial court err in instructing the jury how to weigh Olive's
testimony. Therefore, the failure of Defendant's counsel to
object to these instructions does not constitute ineffective
assistance of counsel. See State v. Whittle, 1999 UT 96,34, 989
P.2d 52 ("The failure of counsel to make . . . objections which
would be futile if raised does not constitute ineffective
assistance." (quotations and citation omitted)). Furthermore,
Defendant can demonstrate no prejudice arising from the jury
instructions regarding flight, reasonable doubt, accomplice
liability, or the elements of murder. Defendant's ineffective
assistance of counsel claim therefore cannot be premised on these
purported errors. See State v. Strain, 885 P.2d 810, 814 (Utah
Ct. App. 1994) ("[I]n cases in which it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, we will do so without addressing whether counsel's
performance was professionally unreasonable." (quotations and
citation omitted)).
II. Sentencing
24
Defendant additionally argues the trial court committed
plain error by imposing the maximum mandatory sentence for
aggravated kidnaping without making findings regarding mitigating
factors, and that his counsel was deficient for failing to object
to such error. Under Utah Code section 76-3-201, "[i]f a statute
under which the defendant was convicted mandates that one of
three stated minimum terms shall be imposed, the court shall
order the imposition of the term of middle severity unless there
are circumstances in aggravation or mitigation of the crime."
Utah Code Ann. 76-3-201(6)(a) (Supp. 2002). The statute
20030347-CA
10

further requires the trial court to "set forth on the record the
facts supporting and reasons for imposing the upper or lower
term." Id. 76-3-201(6)(d).
25
Here, Defendant was convicted of aggravated kidnaping in
violation of Utah Code section 76-5-302, which is punishable by
imprisonment for an indeterminate term of not less than six, ten,
or fifteen years. See id. 76-5-302 (Supp. 2002). In
sentencing Defendant on this count, the trial court acknowledged
that it needed to consider the aggravating and mitigating
circumstances, but sentenced Defendant to a minimum term of
fifteen years on this count without making any findings regarding
mitigating factors. Instead, it merely determined that "the
aggravating circumstances outweigh the mitigating circumstances
because the whole intent was to kill Keith Williams. And I can't
imagine a more aggravating circumstance than that."
26
Defendant contends the trial court erred by failing to make
findings regarding mitigating factors--specifically findings
about Defendant's youth and his "strong family support"--and that
his counsel was deficient for failing to object to such error.
To obtain appellate relief under the plain error doctrine,
Defendant must show that an error occurred and the error should
have been obvious to the trial court. See State v. Casey, 2003
UT 55,41, 82 P.3d 1106. An ineffective assistance of counsel
claim requires Defendant to show that his trial counsel's
performance was objectively deficient. See State v. Mecham, 2000
UT App 247,21, 9 P.3d 777 (citing Strickland v. Washington, 466
U.S. 668, 687-88 (1984)). "The failure of counsel to make . . .
objections which would be futile if raised does not constitute
ineffective assistance." Whittle, 1999 UT 96 at 34 (quotations
and citation omitted).
27
Defendant can show neither plain error nor ineffective
assistance of counsel. "[A] critical element in the [sentencing]
process is the trial court's fact finding role in determining the
existence of circumstances in aggravation and mitigation." State
v. Moreno, 2005 UT App 200,12, 113 P.3d 992. Therefore, "any
mitigating or aggravating circumstances found by the trial court
must be supported by evidence," id. at 13, and "[i]n the absence
of any express findings regarding proffered mitigating or
aggravating circumstances, we will conclude that the trial court,
by implication, found that the proffered circumstances did not
amount to circumstances in aggravation or mitigation," id. at
18. Here, Defendant complains that the trial court did not make
any findings regarding his youth and his "strong family support."
However, age should be considered as mitigating only "when a
defendant is very young and unsophisticated," id. at 14, and the
trial court was not obliged to believe inconsistent evidence and
the self-serving statements of Defendant, see id. at 15-17.
20030347-CA
11

Defendant was twenty years old when he committed the crimes at
issue here, and he had an extensive juvenile record as well as a
conviction as an adult. Furthermore, although Defendant stated
that his family remained "loving and supportive of him," the
court received no letters in his support and attempts to contact
his family members were unsuccessful. Because the purported
mitigating factors were not supported by evidence, we conclude
that the trial court simply found that Defendant's age and family
support "did not amount to circumstances in . . . mitigation."
Id. at 18. Therefore, the trial court did not commit error by
failing to make findings regarding these factors, nor did
Defendant's counsel provide ineffective assistance.
28
Affirmed.
______________________________
James Z. Davis, Judge
-----
29
WE CONCUR:
______________________________
Judith M. Billings, Judge
______________________________
Gregory K. Orme, Judge
20030347-CA
12