2021 UT App 137
Utah Ct. App.2021Background
- Victim (stepdaughter) alleged two incidents about a year apart: at age 11 Tippets put his hand down her pants and forced her to touch his penis; at age 12 he spooned her, placed his hand over hers on her breast and used her hand to caress/squeeze her breasts for several minutes.
- At a Children’s Justice Center (CJC) interview the victim described being forced to touch the penis but did not mention the hand-down-pants detail; at the preliminary hearing she gave additional detail that was not repeated on direct at trial.
- At trial defense counsel previewed and then sought to impeach the victim with her prior inconsistent preliminary-hearing testimony, eliciting the more-damaging hand-down-pants allegation. Defense counsel also asked the victim’s mother about other children and whether she was aware of allegations against Tippets, which led the detective to testify he was aware of one other allegation involving a prior stepdaughter (age 16).
- The jury convicted Tippets of two counts of aggravated sexual abuse of a child. New counsel moved for a new trial alleging ineffective assistance of trial counsel in three respects: (1) eliciting damaging prior testimony from the victim, (2) opening the door to other-allegation evidence and not requesting a limiting instruction, and (3) failing to move for a directed verdict on count 2.
- The district court held an evidentiary hearing, found defense counsel’s performance was not deficient, and denied the motion. On appeal the Utah Court of Appeals reviewed the Strickland standard de novo (with deference to factual findings) and affirmed.
Issues
| Issue | Tippets' Argument | State's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective by impeaching the victim with her preliminary-hearing testimony that Tippets put his hand down her pants | That counsel unreasonably elicited new, damaging allegations and so performed deficiently | Impeaching with inconsistent prior statements was a reasonable strategy to attack credibility | Court: Not deficient; impeaching inconsistencies was reasonable trial strategy given centrality of credibility |
| Whether counsel opened the door to other-allegation evidence and then failed to seek a limiting instruction | That eliciting mother’s testimony opened the door and counsel should have sought a limiting instruction once the detective testified | Defense strategy in narrowly wording the question and then forgoing a limiting instruction to avoid further highlighting the allegation was reasonable | Court: Not deficient; asking about mother’s children was a calculated, reasonable risk and foregoing a limiting instruction to avoid emphasis was strategic |
| Whether counsel was ineffective for not moving for a directed verdict on count 2 (second incident) | That there was insufficient evidence because Tippets did not make skin-to-skin contact with the victim’s breast | The State argued sufficient evidence supported an indecent-liberties theory (touching through clothing/comparable conduct), so a directed-verdict motion would be futile | Court: Not deficient; evidence supported indecent liberties (duration, intrusiveness, age, trust), so motion would have been futile |
| Whether cumulative errors require reversal | Combined errors undermined confidence in verdict | No single error with potential for harm; no cumulative prejudice | Court: Rejected cumulative-error claim because no individually harmful errors were found |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard)
- Yarborough v. Gentry, 540 U.S. 1 (U.S. 2003) (presumption that counsel’s choices can be reasonable strategic risks)
- Musacchio v. United States, 577 U.S. 237 (U.S. 2016) (sufficiency review must be against elements charged, not an erroneous jury instruction)
- State v. Leota, 455 P.3d 1087 (Utah Ct. App. 2019) (indecent-liberties theory compared to touching enumerated body parts)
- State v. Carvajal, 414 P.3d 984 (Utah Ct. App. 2018) (surrounding circumstances inform whether touching through clothing is comparable to skin-to-skin touching)
- State v. Lewis, 337 P.3d 1053 (Utah Ct. App. 2014) (discussion of indecent liberties definition in sexual-abuse context)