State v. Sellers, 2011 UT App 38

Background

Sellers challenged his conviction for aggravated sexual abuse of a child on five trial-court and trial-counsel errors, focusing on a voluntary intoxication instruction and its burden-of-proof framing.
Sellers, a close family friend of the thirteen-year-old and occasional overnight guest, slept in Child's room during the night of the alleged offense after drinking; Child testified Sellers had slept with her in the past but had not previously assaulted her.
On May 29–30, 2007, Sellers became intoxicated at a party, later woke to find urine on his clothes, and then entered Child's room where Child awoke to find his hand in her pants and finger in her vagina.
A partially empty vodka bottle was found in Child's room; no one recalled seeing Sellers drink from it at the party; Child notified her mother who confronted Sellers, who remained silent and hung up when asked about the allegations.
To convict, the State had to prove touching of Child under fourteen with intent to cause pain or to arouse or gratify sexual desires, including a penetration element; Sellers requested a voluntary intoxication instruction relating to the specific intent element, but the instruction allegedly failed to specify that the State must disprove the defense beyond a reasonable doubt.
The court remanded for new trial on the voluntary intoxication issue, and the opinion also addresses evidentiary challenges related to Detective Bell-Morley’s testimony and certain pretrial statements, although those issues may be moot on retrial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Burden of proof in voluntary intoxication instruction	Sellers argues the instruction omitted that the State must disprove the defense beyond a reasonable doubt.	Sellers contends counsel was ineffective for not objecting to the faulty instruction.	Instruction inadequate; reversible error; remand for new trial
Bell-Morley opinion testimony on intoxication	Testimony improperly conveyed lay opinion or expert-like conclusion about intoxication under rules 701/702 and 704.	Testimony was improper lay or expert testimony; could prejudice defense.	Testimony improper; limits on remand; not to elicit lay opinion on intoxication
Veracity statements during interrogation	Detective Bell-Morley’s questions about Child’s veracity and Sellers’s responses were improper	Interrogation questions were permissible investigative probing outside trial constraints	Admissibility to be decided on remand under evidentiary rules; not decided here
Prior bad acts evidence	Evidence of prior bad acts admitted despite stipulation to exclude	Stipulation foreclosed such evidence	Moot on remand; not resolved due to reversal/remand
Overall preservation and effectiveness of trial counsel	Multiple unpreserved errors may be reviewed for plain error/ineffective assistance	Ineffective assistance warranted relief due to deficient representation	Core relief tied to voluntary intoxication issue; other issues analyzed but remanded or moot

Key Cases Cited

State v. Knoll, 712 P.2d 211 (Utah 1985) (burden on State to disprove affirmative defense beyond a reasonable doubt)
State v. Garcia, 18 P.3d 1123 (Utah Ct. App. 2001) (affirmative defense burden is limited; defendant need not prove defense by preponderance)
State v. Moritzsky, 771 P.2d 688 (Utah Ct. App. 1989) (affirmative defense instructions and burden-shifting discussed)
State v. Torres, 619 P.2d 694 (Utah 1980) (state must prove all elements beyond a reasonable doubt)
State v. Verde, 770 P.2d 116 (Utah 1989) (plain error standard for unpreserved instructional error)
State v. Low, 192 P.3d 867 (Utah 2008) (affirmative defense burden and instruction requirements)
State v. Lee, 128 P.3d 1179 (Utah 2006) (ineffective assistance standard and prejudice prong)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for evaluating ineffective assistance of counsel)
State v. Geukgeuzian, 86 P.3d 742 (Utah 2004) (invited error and preservation considerations in trial instructions)
State v. Garcia, 18 P.3d 1123 (Utah Ct. App. 2001) (affirmative defense burden; instructions should explain burden)
State v. Davis, 155 P.3d 909 (Utah Ct. App. 2007) (704/702 discussion for expert/lay testimony)