State v. Hand, 367 P.3d 1052

Background

Ronald Alvin Hand was convicted of aggravated sexual abuse of a child (first-degree felony) for acts alleged to have occurred between May 19, 2010 and September 1, 2011.
Hand moved under Utah R. App. P. 23B to remand and supplement the record with two alibi-witness affidavits and materials concerning the victim’s forensic interview, alleging ineffective assistance of trial counsel.
The proposed alibi affidavits stated the witnesses were present at the victim’s mother’s home “the day of the claimed incident” and were with Hand while the victim was present, but did not identify the specific date.
The victim testified at trial to specific acts (back rubbing, digital penetration, request to be a “little girlfriend”); the jury convicted Hand. The forensic interview was not played for the jury.
The trial court denied Hand’s motion to arrest judgment, finding the victim’s testimony direct and sufficient; Hand appealed and sought remand under rule 23B.
The appellate court denied the rule 23B motion and affirmed, finding (1) the proposed new facts could not show counsel was ineffective and (2) the inconsistencies in the victim’s statements were matters for the jury, not grounds to arrest judgment.

Issues

Issue	Hand's Argument	State's Argument	Held
Whether remand under Utah R. App. P. 23B warranted to add alibi witnesses and interview material to show ineffective assistance	Counsel failed to investigate and call two alibi witnesses; counsel failed to investigate the forensic interview	Proposed evidence is speculative, would not show prejudice, and counsel’s strategy was reasonable	Denied: 23B remand not warranted because even if true the new facts could not establish ineffective assistance
Whether counsel was ineffective for not calling the two alibi witnesses	Their testimony would have established Hand’s alibi	Affidavits lack a precise date; counsel had reasonable strategy to attack the imprecise timeframe and victim credibility	Held: No deficient performance or prejudice—reasonable tactic not to call them
Whether counsel was ineffective for not investigating/attacking the victim’s forensic interview	Counsel should have tested interview reliability to undermine victim’s testimony	Interview was not admitted at trial; its contents and effect on testimony are speculative; counsel pursued a fabrication defense	Held: No ineffective assistance—attacking the interview would not have advanced defense theory
Whether the trial court erred in denying motion to arrest judgment based on inconsistencies in victim’s statements	Inconsistencies (location of hiding, statements, hand gesture, improbability of conduct near mother) made verdict inherently improbable	Victim’s testimony as to core facts was direct, specific, and sufficient; peripheral inconsistencies go to credibility for the jury	Held: No error—inconsistencies were tangential and for the jury; evidence supported conviction

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
State v. Litherland, 12 P.3d 92 (Utah 2000) (applying Strickland standard)
State v. Bluff, 52 P.3d 1210 (Utah 2002) (standard for arresting judgment: evidence so inconclusive or inherently improbable that reasonable doubt must exist)
State v. Robbins, 210 P.3d 288 (Utah 2009) (substantial inconsistencies in a sole witness can render testimony inherently improbable)
State v. Tennyson, 850 P.2d 461 (Utah Ct. App. 1993) (ineffective-assistance claim fails if any conceivable legitimate tactic explains counsel’s conduct)
State v. Lee, 318 P.3d 1164 (Utah Ct. App. 2014) (rule 23B remand standard: nonspeculative allegations that could support ineffective assistance)
Burke v. State, 342 P.3d 299 (Utah Ct. App. 2015) (alibi that covers only part of charged timeframe may not establish prejudice)
State v. Black, 344 P.3d 644 (Utah Ct. App. 2015) (standard of review for motion to arrest judgment)
State v. Kamrowski, 347 P.3d 861 (Utah Ct. App. 2015) (peripheral inconsistencies generally go to credibility for the jury)