State v. Bair
275 P.3d 1050
Utah Ct. App.2012Background
- Bair separated from his wife in 1996; their children visited him in Layton where abuse occurred during 1997–1998.
- Daughter testified that Bair engaged in repeated touching and kissing, including oral sex and touching her genitalia, during 30–45 minute sessions labeled as 'loving up.'
- Mother discovered the history after Daughter disclosed in 2007; Daughter later reported to authorities after online abuse forum discussions.
- Evidence included a separation letter in which Bair admitted a sex addiction and emotional disorder; letter was admitted at trial to show intent.
- Detective testified about Bair’s statements and about 'loving up' phrase; defense challenged admissibility and weight of that testimony.
- Jury found Bair guilty of two counts of aggravated sexual abuse of a child; he was sentenced to two concurrent 5-to-life terms and challenged on several trial issues via a Rule 23B remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of the separation letter | Breadth of 404(b) intent evidence supports specific intent. | Letter is improper propensity evidence; unfair prejudice. | Letter admitted for noncharacter purpose; probative value not substantially outweighed. |
| Recovered memories testimony | Recovered memories should be admitted to prove memory consistency. | Hypnosis/recovered-memory testimony prejudicial; plain error likely. | No reversible error; any error not prejudicial given remaining evidence. |
| Detective's testimony and Rule 608 | Detective testimony supported corroboration of victim's allegations. | Testimony improperly vouched for credibility and invaded juror's province. | Testimony did not violate Rule 608; did not directly address veracity. |
| Ineffective assistance of counsel | Counsel failed to call witnesses and experts; defense preparation deficient. | Strategic decisions and reasonable defense tactics; no prejudice shown. | Rule 23B findings supported; no ineffective assistance shown. |
| Natural parent aggravator and ex post facto | Natural parent aggravator properly applied under amended statute. | Ex post facto misuse; statute applied incorrectly for timing; verdict may be unsound. | Plain error for applying 1998 version; need remand for entry of lesser included offense (sexual abuse of a child). |
Key Cases Cited
- State v. Dunn, 850 P.2d 1201 (Utah 1993) (cumulative error and evidentiary balancing in Utah)
- State v. Adams, 5 P.3d 642 (Utah 2000) (testimony on capacity to be coached; rule 608(a) guidance)
- State v. Hoyt, 806 P.2d 204 (Utah Ct.App. 1991) (delayed reporting in child abuse cases; relevance)
- State v. Burke, 256 P.3d 1102 (Utah 2011) (404(b) analysis and balancing factors)