State v. Bran
2021 UT App 62
| Utah Ct. App. | 2021Background
- Bran, a massage therapist, was accused of sliding his hand under a patient’s underwear and inserting his fingers between her labia during a second massage; the patient stopped him, he apologized and left, she reported the incident, and a sexual-assault forensic exam was performed.
- At trial the patient testified to the touching and lack of consent; clinic staff and the nurse testified the patient was crying and upset when reporting/after the session.
- DNA testing detected a three-male-contributor profile; the State’s analyst excluded Bran as the major contributor but could not conclusively exclude him as a minor contributor; the defense expert maintained Bran could be excluded as all contributors.
- Defense presented a massage-instructor witness about draping, technique, and referred sensations; defense theory was that the patient experienced referred sensation rather than sexual touching.
- During trial the prosecutor reported a juror was nodding off; the court granted a five-minute recess; no further juror issues appear in the record.
- The jury convicted Bran of object rape; Bran appealed, claiming evidentiary errors, plain error, and ineffective assistance of counsel on several points.
Issues
| Issue | State's Argument | Bran's Argument | Held |
|---|---|---|---|
| Admissibility of testimony that the patient was crying | Cytations admissible as nonverbal conduct not offered for truth; admissible as circumstantial/relevant | Testimony was hearsay and should have been excluded | Court: Not hearsay because crying was not an asserted statement; admission not erroneous |
| Admission of Bran’s apology (as recounted by patient) | Apology is an opposing-party statement and not hearsay under rule 801(d)(2) | Apology should have been excluded as hearsay (or under hearsay exceptions) | Court: Statement is party-opponent admission; admissible; counsel not ineffective for failing to object on hearsay grounds |
| Handling of a reportedly sleepy juror | Court’s brief recess was a proportional remedy under circumstances | Court should have questioned juror to determine whether vital testimony was missed; counsel ineffective for not requesting further inquiry | Court: No clear abuse of discretion; record does not show juror slept through trial; counsel not ineffective |
| Sufficiency of evidence / directed verdict on object rape | Patient’s testimony + circumstantial evidence sufficient to establish penetration, lack of consent, and intent | DNA results undermined State’s case; counsel ineffective for not moving for directed verdict | Court: Patient’s testimony alone provided believable evidence to defeat directed verdict; counsel not ineffective |
| Failure to instruct on lesser-included offense (sexual battery) | No rational basis shown for lesser instruction; counsel reasonably pursued all-or-nothing defense | Counsel should have requested a sexual-battery instruction; court should have given it sua sponte | Court: No basis shown for instruction; counsel reasonably declined it; no plain error |
Key Cases Cited
- State v. Vallejo, 449 P.3d 39 (Utah 2019) (reciting facts in light most favorable to jury verdict)
- State v. Holgate, 10 P.3d 346 (Utah 2000) (plain-error standard elements)
- State v. Emmett, 839 P.2d 781 (Utah 1992) (directed-verdict/prima facie case standard)
- State v. Marquina, 478 P.3d 37 (Utah 2020) (guidance on handling inattentive or sleeping jurors)
- State v. Kelley, 1 P.3d 546 (Utah 2000) (futility of objections does not constitute ineffective assistance)
- State v. Vargas, 20 P.3d 271 (Utah 2001) (statements by a party-opponent are not hearsay)