State v. Rhodes, 450 P.3d 1123

Background

Child, raised by grandmother, stayed with aunt and roommates; Rhodes (a registered sex offender) lived with aunt and developed a close father-figure relationship with Child and grandmother.
Over time Rhodes spent extended private time with Child, showed him pornography, and engaged in oral sex and other sexual acts; Child later reported these acts occurred repeatedly over years.
In 2013 a ‘‘spooning’’ incident with Rhodes and an unrelated incident with a neighborhood boy (mutual touching) prompted a DCFS investigation and an initial CJC interview in which Child did not disclose abuse; the investigation was closed.
In 2015 Child disclosed to his mother that Rhodes had shown him pornography and sexually abused him; Child then completed a second CJC interview where he disclosed oral sex and other abuse by Rhodes.
Rhodes was charged with one count of aggravated sexual abuse of a child and four counts of sodomy upon a child; at trial two CJC interviews were admitted and the jury was allowed to review them during deliberations; Rhodes was convicted on all counts and sentenced to lengthy consecutive terms.

Issues

Issue	Rhodes’s Argument	State’s Argument	Held
Admissibility of evidence of Child’s other sexual behavior (incident with neighborhood boy) under Utah R. Evid. 412	412 evidence was essential to defense: someone else abused Child; exclusion violated Sixth Amendment right to present a defense	Evidence was speculative, dissimilar to charged acts, and not essential; defense could pursue identity defense through other means	Exclusion upheld: trial court did not abuse discretion; evidence too speculative to be ‘‘essential’’ under rule 412(b)(3)
Failure to object to grandmother’s testimony suggesting Child told therapist in 2013	Counsel ineffective for not objecting to misleading testimony that created impression Rhodes was suspected in 2013	Grandmother’s testimony wasn’t misleading; defense elicited related testimony; counsel corrected the issue by seeking court clarification	Ineffective-assistance claim denied: counsel’s performance not deficient and no showing of prejudice
Jury viewing CJC interview videos during deliberations	Court plainly erred by allowing testimonial exhibits in jury room (Cruz)	Defense invited the error and repeatedly urged jury to rewatch videos; strategic choice	No plain-error review; error, if any, was invited and part of defense strategy
Request for Rule 23B remand to supplement record on failure-to-call-witnesses claim	Counsel failed to investigate and call roommate and employer who could provide alibi/absence evidence	Affidavits are speculative, limited, and would not show deficient performance or prejudice	Rule 23B remand denied: alleged facts even if true would not establish deficient representation or prejudice

Key Cases Cited

State v. Beverly, 435 P.3d 160 (Utah 2018) (abuse-of-discretion review for Rule 412 rulings)
State v. Thornton, 391 P.3d 1016 (Utah 2017) (Sixth Amendment right to present a defense not absolute; evidence must be essential)
State v. Tarrats, 122 P.3d 581 (Utah 2005) (policy reasons for Rule 412 exclusion)
State v. Marks, 262 P.3d 13 (Utah Ct. App. 2011) (heightened concern when complainant is a child; dissimilar sexual activity has limited relevance)
State v. Ring, 424 P.3d 845 (Utah 2018) (invited-error doctrine bars plain-error review when defense prompted the court’s action)
State v. Cruz, 387 P.3d 618 (Utah Ct. App. 2016) (caution against sending testimonial child-interview videos into jury deliberations)
State v. Bedell, 322 P.3d 697 (Utah 2014) (deference to trial strategy when evidence use has conceivable strategic purpose)
State v. Lane, 444 P.3d 553 (Utah Ct. App. 2019) (standards for inefficient-assistance claims raised on appeal)
State v. Wilcox, 808 P.2d 1028 (Utah 1991) (alibi defense often unrealistic when defendant had continual contact with a child victim)