State v. Hatch
455 P.3d 1103
Utah Ct. App.2019Background
- Victim (Hatch’s stepdaughter) testified to multiple sexual-abuse incidents from age ~7 through teens, including digital/vaginal contact, oral-sex requests, and exposure to pornographic material. Police were contacted after Victim shared journal entries at ~13.
- State charged Hatch with four first-degree felonies (aggravated sexual abuse of a child; two counts of sodomy on a child; attempted aggravated sexual abuse) and one third-degree felony (dealing in material harmful to a minor — Count 5).
- On the first day of trial the prosecutor, trial judge, and defense counsel conferred in chambers while Hatch was absent for a pretrial discussion; Hatch was later introduced on the record before voir dire and participated in in-chambers juror interviews.
- Trial counsel sought to introduce testimony (Grandfather and a DCFS worker) that Victim previously accused Brother of sexual abuse and recanted; the court excluded that evidence as hearsay and under Rule 412 absent a prerequisite showing of falsity.
- Count 5 (magazine/shoebox incident) was raised in testimony but later dismissed on statute-of-limitations grounds; the court instructed the jury (Instruction 20) to disregard facts related to Count 5; defense counsel nevertheless emphasized the instruction and urged jurors to avoid considering the dismissed evidence.
- Jury convicted Hatch on the remaining counts. On appeal he argued (inter alia) ineffective assistance of counsel (several grounds), trial-court error for his absence during critical stages, failure to seek merger of counts, insufficiency of evidence on the attempted-abuse count, and erroneous exclusion of impeachment evidence; the Court of Appeals affirmed.
Issues
| Issue | State's Argument | Hatch's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not earlier moving to dismiss Count 5 and for failing to object to Instruction 20 | Any delay or instruction did not prejudice Hatch because far more inflammatory, admissible sexual-abuse evidence remained and curative instruction plus defense closing minimized risk | Late statute-of-limitations motion and informing jury why Count 5 was dismissed prejudiced jury and undermined fairness | No ineffective assistance — even assuming deficiency, Hatch failed to show prejudice; instruction and counsel’s closing mitigated any risk |
| Whether counsel was ineffective and trial court erred by allowing Hatch to be absent during pretrial chambers discussion / jury selection | State: Record shows Hatch was present for jury selection and has not shown an actually biased juror or any specific prejudice from limited absence | Hatch: Absence deprived him of Sixth Amendment right to be present; counsel ineffective for not ensuring presence | No plain error and no ineffective assistance — Hatch did not demonstrate prejudice or that an actually biased juror was seated |
| Whether counsel was ineffective for failing to move to merge Counts 1 and 2 (aggravated sexual abuse vs. sodomy) | State: Counts charged distinct acts; aggravated sexual abuse is not a lesser included offense of sodomy under statute and merger motion would have been futile | Hatch: The acts arose from the same episode and aggravated sexual abuse was a lesser-included/offense to be merged | No ineffective assistance — aggravated sexual abuse is not a lesser included offense of sodomy and charges addressed distinct acts; merger motion would be futile |
| Whether counsel was ineffective for not moving for directed verdict / dismissal on Count 4 (attempted aggravated sexual abuse) | State: Evidence (locking Brother out, undressing Victim, porn film, laying on bed) constituted a substantial step beyond mere preparation — sufficient for attempt | Hatch: Conduct did not rise to a substantial step; insufficient evidence for attempt conviction | No ineffective assistance — suficient evidence supported a reasonable jury’s finding of a substantial step toward attempted aggravated sexual abuse |
| Whether exclusion of Grandfather’s testimony about Victim’s alleged prior accusation against Brother violated Hatch’s right to present a defense | State: Defendant failed to make the Rule 412/Tarrats threshold showing of falsity by preponderance; offered testimony was hearsay and inadmissible extrinsic impeachment | Hatch: Grandfather’s testimony would have impeached Victim’s credibility and shown bias/broken chain leading to charges | No abuse of discretion — Hatch did not meet the required pretrial showing of falsity, so trial court properly excluded the evidence |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel: deficient performance and prejudice)
- United States v. Resendiz-Ponce, 549 U.S. 102 (U.S. 2007) (attempt requires a substantial step beyond mere intent/preparation)
- State v. Arave, 268 P.3d 163 (Utah 2011) (clarifies substantial-step analysis for attempt convictions)
- State v. King, 190 P.3d 1283 (Utah 2008) (prejudice requirement for absence during jury selection; need actual bias)
- State v. Tarrats, 122 P.3d 581 (Utah 2005) (Rule 412 threshold: defendant must show falsity of prior allegation by preponderance before admissibility)
- State v. Montoya, 84 P.3d 1183 (Utah 2004) (evidentiary sufficiency standard for jury verdict on attempt)