STATE of Utah, Plaintiff and Appellee, v. Caroline ASHBY, Defendant and Appellant.
No. 20121070-CA
Court of Appeals of Utah
July 9, 2015
2015 UT App 169 | 354 P.3d 554
¶ 30 With McBride on the books, moreover, Steed has a good argument for an exception to the mootness bar on advisory opinions. If the mere prospect that a litigant could choose to retake the bar exam is enough to sustain an exception, then the possibility that a litigant might find it difficult to defend against a criminal charge while also challenging a freeze order may also be enough. The dilemma faced by the Steeds seems at least as difficult as that facing McBride.22
¶ 31 The majority does not conclude otherwise. It simply says that it is “confident there will be cases where defendants with adequate resources and motivation will have ample time to challenge a live freeze order and fully litigate the issue.” Supra ¶ 13. That is undoubtedly correct. But this analysis does not distinguish McBride. A parallel point could be made as to a challenge to the bar exam; there are cases where bar examinees have adequate resources and motivation to challenge the bar exam.
¶ 32 For these reasons, I see little distinction between this case and McBride. To dismiss this case as moot, we should overrule McBride instead of proffering an unpersuasive ground for distinguishing it. By preserving the McBride exception, we invite arbitrariness in future cases. I would avoid that problem by overruling a decision that lacks an historical basis in the traditional exercise of the judicial power.
Aaron P. Dodd, Provo, Attorney for Appellant.
Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee.
Judge KATE A. TOOMEY authored this Opinion, in which Judges STEPHEN L. ROTH and JOHN A. PEARCE concurred.
Opinion
TOOMEY, Judge:
BACKGROUND
¶ 2 Child was born in 2002.2 Between 2009 and 2010, Ashby cared for Child and sometimes watched him overnight. During this time, Child told his father (Father) that when Ashby cared for him, she took baths with him. Concerned that the seven-year-old boy was too old to be bathing with an adult woman, Father told Ashby it was inappropriate for her to bathe with Child. During this period, Child also began seeing a clinical psychologist (First Therapist) for therapy and counseling.
¶ 3 Around May 2010, Father learned that Ashby and her boyfriend (Boyfriend) “picked at” Child‘s scrotum in an attempt to remove stitches from a surgical procedure that Child underwent four years earlier. This information prompted Father to consult a surgeon, who told Father the stitches would have dissolved within weeks after surgery. When Father informed Ashby there could not be any stitches in Child‘s scrotum, Ashby claimed she did nothing inappropriate and was simply caring for Child after he complained of pain and asked her to look at his scrotum and legs.
¶ 4 In November 2010, when Child was eight years old, his stepmother (Stepmother) called Wasatch Mental Health for a referral to a new therapist (Second Therapist) to address Child‘s “behavioral issues.” During her call, Stepmother relayed some of her concerns regarding Ashby‘s interactions with Child, which led to an investigation.
¶ 5 Shortly thereafter, a forensic interviewer questioned Child at the Children‘s Justice Center (the CJC interview). The CJC interview was recorded onto a DVD (the DVD) and later transcribed. During the interview, Child said Ashby taught him about private parts when he was six or eight years old. When asked specifically what Ashby taught him, Child said he “[didn‘t] really want to tell” because “[i]t feels really embarrassing.” Child confirmed that Ashby touched his scrotum to look for stitches and took naked baths with him. He also indicated that during these baths Ashby put soap on her hand and used it to “scrub” and “sweep” his private parts. Child explained that “[e]very single time,” Ashby told him to “wash [her] every-
¶ 6 In December 2010, Ashby was charged with two counts of aggravated sexual abuse of a child. Before trial, she filed a motion pursuant to
¶ 7 The court found that before the allegations came forth in this matter, Child was involved in six incidents of sexual behavior with other children (the rule 412 evidence). Five of the six involved other boys; in the sixth, Child asked a girl to touch his genitals.
¶ 8 The trial court further found that during the period the alleged abuse was taking place, First Therapist was treating Child for “some behavioral acting out and some lying.” Although Child disclosed to First Therapist that he was uncomfortable with Ashby bathing with him and checking his scrotum for stitches, Child never disclosed that she abused him. Nonetheless, he disclosed to Second Therapist that he had been abused by Ashby “over 100 times.” He also denied his sexual behavior with other children. Second Therapist indicated Child was “in denial about his behavior with other children during one therapy session.” Moreover, the trial court found that during the CJC interview, Child failed to disclose sexual behavior with other children and instead disclosed only sexual behavior with Ashby.
¶ 9 The trial court ultimately denied Ashby‘s rule 412 motion and prohibited her from offering evidence of Child‘s sexual behaviors, except those involving Child and Ashby. In so ruling, the court considered the relevance of the evidence to Ashby‘s theories for admission and the extent to which its exclusion furthered the purposes of
¶ 10 A jury trial was held in October 2012. Before the jurors heard the evidence, the trial court informed them that they “will have everything that‘s been admitted with [them] in the jury room” and that “[g]enerally, what‘s played in front of [the jurors] or read to [the jurors] comes into evidence and [they will] have an opportunity to see it later.” The trial court also told the jurors that when it gives them “the go-ahead at the end of everything to talk about the case, you‘ll have the exhibits, you‘ll be able to share them, look at them, comment on them to each other, those anything that‘s been admitted into evidence will go into the room with you.” The court further stated, “Anything that‘s not admitted, if, for instance, there was some video or audio recording that was played but not admitted into evidence, then you‘d just have to rely on your memory or whatever notes you take for your personal use.”
¶ 11 At trial, Child testified via a live video feed playing on a closed-circuit television. In his testimony, Child restated that he had repeatedly taken naked baths with Ashby and they washed each other‘s private parts. He was also able to describe in detail what breasts and a vagina look like. Unlike the CJC interview, however, Child stated at trial that he did not remember washing the inside of Ashby‘s vagina and anus, but he indicated that he “probably did.”
¶ 12 Ashby testified and denied the allegations of abuse. Although Ashby admitted she and Boyfriend looked at Child‘s scrotum for stitches and she bathed nude with Child when he was younger, she testified she stopped bathing naked with him when he
¶ 13 In connection with the forensic interviewer‘s testimony, the State sought to show the jury the DVD recording of the CJC interview pursuant to
¶ 14 At the beginning of the last day of trial, the court discussed with counsel whether to allow the jury to watch the DVD of the CJC interview while deliberating. The State argued that under
¶ 15 At the close of evidence, the trial court told the jury that “[t]he evidence will go back with you and ... we‘ll go through and make sure exactly what‘s been admitted, what hasn‘t been admitted so that only the received evidence goes back with you and you don‘t inadvertently get something you shouldn‘t have had.” The DVD of the CJC interview was allowed into the jury room. Although the record suggests that four CDs containing recordings of phone calls between Ashby and Child went into the jury room along with a portable CD player, there is no evidence a DVD player was sent in to the jury room during the jury‘s deliberations.
¶ 16 The jury convicted Ashby on both counts, and the trial court sentenced her to concurrent prison terms of ten years to life on each. Ashby appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 17 Ashby first argues the trial court abused its discretion and denied her constitutional rights to confrontation and a fair trial when it excluded impeachment evidence of Child‘s sexual conduct with others pursuant to
¶ 18 Second, Ashby argues the trial court erred by allowing the jury to take the DVD of the CJC interview into its deliberations. The court‘s decision to send in the DVD was based on its interpretation and application of
ANALYSIS
I. Rule 412 Evidence
¶ 19 Ashby challenges the trial court‘s decision to exclude evidence of Child‘s sexual behaviors involving other children. The court excluded the evidence based on
A. Rule 412
¶ 20 “[I]n a criminal proceeding involving alleged sexual misconduct,” “evidence offered to prove that a victim engaged in other sexual behavior” is subject to
¶ 21 Although
¶ 22 In reviewing the court‘s decision to exclude the evidence under
1. Relevance
¶ 23 With one exception, the court found that each proposed piece of evidence bore “only marginal relevance” to Ashby‘s theory for admission. Ashby challenges this conclusion.
¶ 24 Evidence is relevant if it has any tendency to make a fact of consequence “more or less probable than it would be without the evidence.”
¶ 25 Considering that the threshold for determining whether evidence is relevant is “very low,” we agree with Ashby that because the evidence of Child‘s other sexual behaviors had at least some probative value to all three of Ashby‘s purposes, it was relevant. It was slightly probative of Child‘s ability to fabricate a description of the abuse and therefore relevant to rebut the potential for the jury to assume that he could not have described the abuse as he did unless Ashby actually abused him. Likewise, Child‘s failure to disclose his sexual behavior with other children during the CJC interview and his lack of candor with Second Therapist about these incidents were probative of his honesty, and therefore relevant to impeach his testimony. Finally, Child‘s disclosure to First Therapist of some of his other sexual behaviors was at least slightly probative of his capacity and opportunity to disclose that Ashby had abused him, and therefore relevant to her defense that if she had in fact
2. Purposes of Rule 412
¶ 26 The trial court determined that rule 412‘s purposes were furthered by excluding evidence concerning Child‘s sexual behavior with other children, reasoning that although some of this evidence was relevant, its admission “would render great embarrassment” to Child. The court also explained, “[He] is likely to be frightened and confused by the prior experiences and likewise afraid of having to discuss them, or having them discussed about him, in a public and open forum.” It added, “This is true particularly in light of the evidence that [he] was the instigator of ... the other sexual behaviors [Ashby] now seeks to include.” Ashby argues that excluding evidence of Child‘s other sexual behavior was disproportionate to the purposes of rule 412. She also contends the protections of rule 412 are unnecessary, inasmuch as she could introduce the evidence briefly without cross-examining Child and without further embarrassing or humiliating him. We agree with the trial court‘s assessment.
¶ 27 Our supreme court has instructed that “rule 412 should be construed broadly in order to fully effectuate the policy considerations underlying its prohibitions.” Martin, 2002 UT 34, ¶ 42, 44 P.3d 805. The rule has several goals, including “protecting victims of sexual assault from humiliation, encouraging victims to report sexual crimes, and preventing the introduction of ‘irrelevant and collateral issues that may confuse or distract the jury.‘” State v. Marks, 2011 UT App 262, ¶ 48, 262 P.3d 13 (quoting State v. Tarrats, 2005 UT 50, ¶ 24, 122 P.3d 581). When a young victim is involved, we have recognized that a “child is likely to be confused and frightened about the past experience, the child may have inadequate vocabulary to discuss it, and the stress of confronting those memories may increase the likelihood that the child will be unable to testify competently about the current allegations.” Id. ¶ 50. Consequently, “rule 412‘s goal of protecting victims of sexual crimes from embarrassment and humiliation, and of encouraging them to report the crimes, are strongly implicated when the complainant is a child.” Id.
¶ 28 The risk that Child would suffer embarrassment and humiliation is great notwithstanding Ashby‘s assertion that she could offer the evidence without cross-examining him. Even if Ashby used other witnesses to adduce the evidence of Child‘s sexual behavior with other children,
¶ 29 We turn now to the trial court‘s alternative basis for excluding the challenged evidence,
B. Rule 403
¶ 30 Ashby also challenges the trial court‘s exclusion of Child‘s other sexual behaviors under
¶ 31
¶ 32 In the context of deciding whether evidence that falls within an exception to
1. The Sexual Innocence Inference
¶ 33 The trial court determined that even if an exception to
¶ 34 In considering the probative value of the evidence of a child victim‘s other sexual behavior for purposes of rebutting the sexual innocence inference, trial courts first consider “the age of the child complainant at the time the child describes the sexual assault.”6 State v. Marks, 2011 UT App 262, ¶ 37, 262 P.3d 13. Here, Child was eight years old when he first disclosed Ashby‘s abuse and ten years old at trial. The prosecutor raised the sexual innocence inference in closing argument, asserting that given his age, Child could not fabricate the allegations against Ashby because he would not know and be able to describe the details of female anatomy and sexual arousal. We agree with the trial court that Child‘s young age would support the likelihood that the jury might draw the sexual innocence inference in this case.
¶ 35 Next, courts evaluate the probative value of a child victim‘s sexual behavior with respect to his ability to fabricate the current allegations by analyzing “whether the prior sexual activity is similar to that involved in the allegations against the defendant.” Id. ¶ 39. In considering the similarity between a child complainant‘s other sexual activity and the alleged abuse, courts “focus[] on the utility of the evidence in rebutting the sexual innocence inference.” Id. ¶ 40. The probative weight depends on the degree of similarity between those acts and the alleged abuse. See id. ¶¶ 40-41; see also Bravo, 2015 UT App 17, ¶¶ 19-29, 343 P.3d 306 (“[T]he probative value of prior sexual history may be greater when the prior acts are similar to the charged conduct.” (citing State v. Richardson, 2013 UT 50, 308 P.3d 526)).
¶ 36 The trial court determined that Child‘s sexual behavior with other children was not similar to the allegations against Ashby. As the court explained, all but one instance of Child‘s sexual behavior with other children involved oral stimulation with other
¶ 37 We agree that the nature of some of Child‘s sexual behavior with other children was sufficiently similar to the specific sexual acts Ashby was alleged to have committed against him to cross the low threshold of relevance. But we also agree with the trial court that the dissimilarities considerably weaken the probative value of Child‘s other behavior with respect to his ability to fabricate the allegations concerning Ashby. See Marks, 2011 UT App 262, ¶¶ 41, 43, 262 P.3d 13 (indicating that a child victim‘s simulation of sexual intercourse was not probative of his ability to fabricate allegations that the defendant orally sodomized him). Child‘s sexual behavior with other children involved having others touch his private parts, as well as Child‘s oral contact with the sexual parts of others. The acts committed here are only similar to the extent they included manual touching of Child‘s and Ashby‘s sexual body parts. A significant difference, however, is that Ashby‘s acts did not include oral stimulation. As a result, we conclude the trial court did not abuse its discretion in excluding this evidence on the ground that its probative value in rebutting the sexual innocence inference did not outweigh the potential for unfair prejudice to Child of the kind addressed by
2. The Challenge to Child‘s Credibility
¶ 38 Next, Ashby claims the evidence of Child‘s sexual behavior with other children should have been admitted for impeachment purposes. Specifically, she proposed to introduce evidence that during the CJC interview Child failed to disclose his
¶ 39 With respect to any omission about Child‘s sexual conduct with other children during the CJC interview, the trial court reasoned that Child was never asked questions that would elicit such a disclosure. If he was not asked about such behaviors, the fact that he did not disclose them “does not support [Ashby‘s] theory for [admission] that [Child] is dishonest about such sexual behaviors.” Although this evidence was relevant, we agree its probative value is relatively low because Child was not asked specific questions that would draw out disclosure of his other sexual behavior.
¶ 40 With respect to Child‘s dishonesty in his therapy sessions with Second Therapist about his behavior with other children, the trial court found that “only a single progress note” was relevant to Child‘s truthfulness. The court explained that Second Therapist‘s note “reflect[ed] a connection between [Child‘s] sexual conduct and his dishonesty about the conduct.” The court nevertheless excluded the evidence under
3. Child‘s Failure to Disclose Ashby‘s Abuse Earlier
¶ 41 In a related argument, Ashby contends the trial court erroneously excluded evidence that Child reported some of his sexual behavior with other children to First Therapist. According to Ashby, these disclosures “show that [Child] was capable of and had multiple opportunities to report to [First Therapist] inappropriate sexual contact by Ashby, if such abuse actually occurred.”
¶ 42 Although this evidence is relevant to demonstrate Child had earlier opportunities to disclose Ashby‘s abuse, Ashby had other means of effectively showing Child delayed reporting. See State v. Quinonez-Gaiton, 2002 UT App 273, ¶¶ 17-18, 54 P.3d 139. In fact, the jury heard evidence that Child did not disclose the abuse to First Therapist even though First Therapist was treating him during that period. Moreover, the jury heard that Child reported some of Ashby‘s disturbing conduct to First Therapist, including that she took baths with him and had picked at his scrotum. The jury also learned that Child told First Therapist these incidents made him uncomfortable. Ashby‘s counsel highlighted these facts during closing statements to argue that Child‘s memory had been influenced by external sources and that Child would have disclosed the charged abuse sooner if it in fact occurred.
¶ 43 In sum, Ashby has not demonstrated that the trial court exceeded its discretion in ruling that the evidence of Child‘s other sexual behavior was inadmissible under
C. Conclusion
¶ 44 In summary, we conclude that the rule 412 evidence of Child‘s sexual behavior with other children was relevant to his ability to fabricate the abuse allegations against Ashby, and relevant to his truthfulness and his delay in reporting the abuse. We nevertheless affirm the trial court‘s ruling that the exclusion of the rule 412 evidence furthered the purposes of
II. The DVD Taken into the Deliberating Room
¶ 45 Next, Ashby argues the trial court erred in sending the DVD of the CJC interview to the jury room during deliberations. Ashby claims the court‘s decision allowed the jury to “put too much emphasis ... on the CJC interview, thereby bolstering
¶ 46 Because Ashby has not convinced us she was harmed by the trial court‘s decision, we do not address whether sending the DVD of the CJC interview into jury deliberations was erroneous.
¶ 47 Ashby asks us to assume the jury watched the CJC interview during its deliberations, but we will not do so under the circumstances of this case, because nothing suggests the jury watched it. Accordingly, any error in allowing the CJC interview to be included with the exhibits for the jury to view during deliberations would be harmless. When the case was submitted to the jury, the court specifically discussed sending a CD player with the jurors so they could listen to the recorded phone calls that had been admitted as exhibits. The record does not disclose, however, that the court made similar arrangements so the jury could play the DVD of the CJC interview. In fact, when announcing its ruling to allow the jurors to take the DVD into the jury room, the court stated that it usually does not “automatically send a TV back with [the jurors] to play [the recording].” It further explained, “We wait until they ask for it and ... then we send in a TV with them.” There is no indication in the record that the court deviated from this practice, nor is there any indication the jury requested or received a DVD player while it deliberated. In light of these facts, we cannot infer or assume that the jury requested, or that the court allowed, access to equipment that would enable it to watch the DVD during deliberations. Because the record does not suggest that the jury actually played the DVD of the CJC interview during its deliberations, even if the trial court erred by permitting the jury to take the DVD into deliberations, Ashby has not demonstrated the error was harmful.
CONCLUSION
¶ 48 Although we have determined that the rule 412 evidence of Child‘s sexual behavior with other children was relevant, the trial court acted within its discretion in excluding the evidence to further the purposes of