State v. Anderson, 475 P.3d 967

Background

In June 2016 Kristopher Anderson (victim’s cousin) stayed overnight unannounced; the victim (age 6) later reported Anderson pulled down his pants and touched his genitals and put his penis on the victim’s buttocks. Anderson denied at trial.
Parents reported the allegations to police; Anderson told the father he was “not sure” and drunk, and told the mother "yes" after repeated questioning; a detective called Anderson multiple times—Anderson returned one call but did not return subsequent calls.
Family members and siblings testified about changes in the victim’s behavior and emotional state after the incident (sleeping with parents, mood changes, counseling, statements about self-harm); defense did not preserve objections to much of this testimony.
Defense had a psychosexual evaluation and disclosed the psychologist’s report to the State; the court excluded the expert’s opinion under Rule 702, but the State used portions of the report to impeach Anderson with prior inconsistent statements.
Defense counsel made an opening remark that attempts to resolve the case had failed; before trial the information erroneously listed the child-sodomy mandatory minimum as 6/10/15 years (actual statutory minimum is 25 years); trial counsel corrected the court’s misstated figure on the record. Anderson was convicted of child sodomy and child sexual abuse and appealed.

Issues

Issue	Anderson's Argument	State's Argument	Held
1) Admission and emphasis of victim-impact/behavioral-change testimony	Testimony and prosecutor’s closing appealed to juror sympathy and was unfairly prejudicial and irrelevant to guilt	Behavioral and emotional changes are circumstantial, probative evidence corroborating the victim; objections were not made and counsel reasonably chose strategy	Court: Evidence was probative and circumstantial corroboration; counsel not ineffective for not objecting; no plain error
2) Detective testimony / prosecutor comment on Anderson’s failure to return calls (use of silence)	Referring to Anderson’s failure to return calls infringed Fifth Amendment right to remain silent; counsel should have objected	Salinas and related precedent permit use of pre‑Miranda silence unless the defendant unambiguously invoked the privilege; counsel reasonably declined a futile objection	Court: Salinas made the law unclear; counsel’s forbearance was reasonable; no plain error
3) Disclosure of psychosexual evaluation and State’s use to impeach; whether State “opened the door” to entire report	Disclosure was unreasonable; report contained inculpatory material and inconsistent statements; State’s use required admission of the whole report	The court excluded the expert’s opinion but not the defendant’s own prior inconsistent statements; impeachment with defendant’s statements was admissible and objections would be futile	Court: Counsel not ineffective for disclosure or for failing to object to impeachment; trial court properly refused to admit excluded expert opinions and did not abuse discretion
4) Counsel’s comment about failed resolution and incorrect mandatory minimum / plea-phase ineffective assistance	Counsel’s opening implied guilt; counsel failed to advise about correct 25-year mandatory minimum, prejudicing plea decisions; judgment should be arrested	Opening statement denied guilt and did not reference a plea; counsel corrected the court’s misstated minimum on the record; no evidence counsel misadvised Anderson about the mandatory minimum	Court: No deficient performance and no prejudice under Strickland/Lafler; district court did not abuse discretion in denying motion to arrest judgment

Key Cases Cited

Salinas v. Texas, 570 U.S. 178 (pre-Miranda, precustodial silence admissible unless privilege is expressly invoked)
Berghuis v. Thompkins, 560 U.S. 370 (a suspect must unambiguously invoke the privilege to end custodial interrogation)
Doyle v. Ohio, 426 U.S. 610 (post‑Miranda silence cannot be used against defendant)
Jenkins v. Anderson, 447 U.S. 231 (pre‑arrest silence may be used for impeachment)
Fletcher v. Weir, 455 U.S. 603 (post‑arrest silence may be used in certain contexts)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong test)
Lafler v. Cooper, 566 U.S. 156 (right to effective counsel during plea negotiations; prejudice standard)
Marks v. United States, 430 U.S. 188 (rule for interpreting fragmented Supreme Court decisions)
State v. Palmer, 860 P.2d 339 (Utah Ct. App.) (pre‑Miranda invocation and use of pre‑arrest silence discussed)
State v. Cosey, 873 P.2d 1177 (Utah Ct. App.) (victim behavioral changes admissible as circumstantial evidence of trauma)
State v. Campos, 309 P.3d 1160 (Utah Ct. App.) (prosecutor may not ask jury to decide based on sympathy or societal duty)
State v. Kelley, 1 P.3d 546 (Utah) (futile objections need not be made)