State v. Modes
475 P.3d 153
Utah Ct. App.2020Background
- Defendant Frank Val Modes was Victim’s uncle-by-marriage and worked at his wife’s licensed home daycare where Victim attended from infancy to age four.
- Victim testified that, at about age four while at the daycare, Modes woke her and other girls from naps, exposed himself, masturbated, digitally penetrated Victim, and caused pain; Victim disclosed years later as a teenager.
- The State introduced, under Utah R. Evid. 404(c), evidence and testimony from a Prior Victim and a certified conviction for sexual battery to show Modes’s propensity to molest children.
- Modes denied the allegations, asserted alibi and physical incapacity defenses, and was convicted in a bench trial of aggravated sexual abuse of a child and sentenced to 15 years to life.
- On appeal Modes argued (1) plain error in admitting details of the prior molestation under rule 404(c) and (2) ineffective assistance of trial counsel for failing to object to or cross-examine the Prior Victim and for not calling an early-childhood memory expert.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Modes) | Held |
|---|---|---|---|
| Admissibility of prior-acts evidence under Utah R. Evid. 404(c) | Rule 404(c) permits admission of other child-molestation acts to prove propensity; details were probative and relevant | Admission of graphic, inflammatory details exceeded rule 404(c) and was unfairly prejudicial | No plain error: details were necessary to show past child-molestation and propensity; not unfairly prejudicial under Rule 403 |
| Ineffective assistance — failure to object to Prior Victim testimony | Objection would have been futile because testimony properly admitted under 404(c) | Counsel should have objected to exclude inflammatory prior-act details | No deficient performance: reasonable strategy to avoid futile objection |
| Ineffective assistance — failure to cross-examine Prior Victim | Cross-examination could risk eliciting more damaging detail; reasonable tactical choice to forgo it | Counsel’s failure to cross-examine deprived Modes of a fair defense | No deficient performance: forgoing cross was a plausible strategic decision |
| Ineffective assistance — failure to call memory expert on early-childhood recall | No clear need shown; counsel could attack recall through cross-examination; calling an expert is trial strategy | An expert was required to explain memory limits of very young children and would have undermined Victim’s testimony | No deficient performance or proven prejudice: Modes did not show counsel failed to investigate or that expert testimony would have changed outcome |
Key Cases Cited
- State v. Cuttler, 367 P.3d 981 (Utah 2015) (Rule 404(c) allows prior child-molestation evidence but limits admission of unnecessary, inflammatory details)
- State v. Ring, 424 P.3d 845 (Utah 2018) (greater similarity between prior acts and charged act increases probative value for propensity)
- State v. Fredrick, 450 P.3d 1154 (Utah Ct. App. 2019) (discussing scope and purpose of rule 404(c) evidence)
- State v. Johnson, 416 P.3d 443 (Utah 2017) (plain-error standard for unpreserved claims on appeal)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)