State of Utah v. BairState of Utah v. Bair
- Reporters:
- , , , ,
- Before:
- Davis, Orme, Christiansen
OPINION
DAVIS, Judge:
¶1 Robert David Bair appeals from a conviction and judgment of two counts of aggravated sexual abuse of a child. We reverse Bair‘s convictions for aggravated sexual abuse of a child and direct entry of a conviction and judgment of two counts of sexual abuse of a child.
BACKGROUND1
¶2 In August 1996, Bair separated from his wife (Mother). In a handwritten letter that he left on Mother‘s car (the separation letter), Bair explained that he had engaged in extramarital sex; that he was “addicted to sex“; specifically the “touchy/feely-play around part of sex“; and that he had a “clearly addictive pattern,” amounting to an “emotional disorder” that he “need[ed] help for.” The couple eventually divorced and Mother retained custody of their three children, an eight-year-old son (Son), a seven-year-old daughter (Daughter), and a four-year-old daughter (Sister). From February 1997 until December 1998, Bair lived in an apartment on his own in Layton, Utah, where his children would visit him every other weekend. During these visits, Bair would often tickle and play with his children in his bedroom. However, on three to five occasions during the time in which Bair lived in Layton, the horseplay progressed to abuse. On each occasion, Son and Sister would leave the room to engage in other activities and Bair would tell Daughter to stay so he could “‘love [her] up.‘” He used that phrase each time and did not use it in any other context with Daughter. “Loving her up” consisted of thirty- to forty-five-minute sessions during which Bair would kiss Daughter on the lips, insert his tongue into her mouth, and put his hand under her clothing to rub her nipples, vaginal area, clitoris, and buttocks. On one occasion, Bair inserted his finger into Daughter‘s vagina. During these sessions, Bair would “tell [Daughter] that [she] was pretty and that [Sister] would always be jealous of [her] because [she] would always be prettier than her,” and he “would tell [Daughter] that [she] was his best friend and ask[ her] if [she] liked it.” On the last episode of abuse, Bair “slowed down” what he was doing, “stopped[,] . . . sat up on the bed,” told Daughter “to not tell anybody because it was [their] little secret” and “it was wrong,” and then left the room.
¶3 At one point after Daughter was abused and before she reported the abuse, Mother had a disturbing dream that prompted her to ask Daughter if Bair “had ever touched [her] inappropriately.” Daughter responded in the negative, explaining at trial that she “should have told [Mother] then” but did not because she did not want to hurt Bair. Daughter did not disclose the abuse to
¶4 Daughter and Sister were each interviewed at the Children‘s Justice Center (CJC). One of the investigators who interviewed them (the Detective) also interviewed Bair. Subsequently, an Information was filed charging Bair with two counts of aggravated sexual abuse of a child. Bair‘s trial counsel conditionally waived the preliminary hearing, and Bair was bound over on the charges as they were set forth in the Information.2
¶5 A jury trial followed. Daughter testified at trial and mentioned that she had gone through counseling in the time between her initial reporting and the trial and that the counseling allowed her to “get some more memories back.” Daughter testified that during the therapy sessions she would “lay down on [a] couch and [the therapist] would just turn the lights down and . . . would just talk to [her] about the memories that [she] already had,” prompting her to think “back as hard as [she] could.” Mother‘s testimony also indicated that Daughter had attempted hypnosis to “see if there were any other issues that hadn‘t already been discussed” but that it was unsuccessful.
¶6 Over Bair‘s objections on relevance and prejudice grounds, the State also introduced portions of the separation letter. The State used the letter as evidence of Bair‘s intent and to rebut Bair‘s defense that Daughter had fabricated the allegations. The State argued that the statements in the letter regarding Bair‘s addiction to the “touchy/feely” aspects of sex are consistent with Daughter‘s testimony describing the abuse as involving acts that comprised the “touchy/feely” aspects of sex. The State also asserted that because Daughter had no knowledge of Bair‘s letter before reporting her abuse, Bair‘s defense that Daughter fabricated her allegations is not believable in light of the otherwise inexplicable consistencies between the letter and Daughter‘s allegations. Additionally, the State used the letter to demonstrate that Bair‘s intent in abusing Daughter was to satisfy his addiction to the “touchy/feely” aspects of sex that he admittedly was having difficulty controlling not long before Daughter was abused.
¶7 The Detective also testified at trial. He testified that during his interview with Bair, Bair described Daughter as taking on a mature, motherly role after the divorce and stated that he felt like he was “able to talk to her.” The Detective testified that Bair also “talked about cuddling with her[, l]oving her up.” He testified that he confronted Bair with the phrase “loving up,” explaining that Daughter used the same term to describe the abuse. According to the Detective‘s testimony, Bair explained that he used the phrase to mean “hugging and kissing, teasing, [and] running around.” The Detective also testified that when he asked Bair if he had sexually abused Daughter, Bair stated that he “‘didn‘t have an interest in children‘” and did not “‘have much of an interest with [Daughter] that way,‘” and that he “hesitate[d]” before stating, “‘I mean, no interest in children.‘” The Detective testified that Bair‘s response to his follow-up question for clarification was, “‘I have no interest in children.‘” The Detective further testified that Bair tried to deflect the interview questions and that Bair‘s denials were “flat” and “emotionless.” Flat and emotionless responses, the Detective testified, were atypical. Additionally, the Detective testified that “[b]ased on the probably hundreds of [abuse] cases [he has] investigated, it‘s not uncommon for a victim not to disclose initially.” He explained that this can be the case even when a victim has been given several opportunities to disclose and that “it‘s a very common thing in sexual abuse of children to not make an immediate or even a close to immediate disclosure,
¶8 Bair was ultimately found guilty of both counts of aggravated sexual abuse of a child, a first degree felony, and sentenced to two concurrent prison terms of five years to life. Bair moved this court for a temporary remand under
(1) whether [trial counsel] was ineffective for failing to call [three specific individuals as witnesses]; (2) whether [trial counsel] was ineffective for failing to call an expert witness to rebut the argument that [Bair]‘s admission that he had a sex addiction established or supported the requisite intent to sexually abuse a child; (3) whether [trial counsel] was ineffective for failing to argue that Bair did not qualify as a ‘natural parent’ under the aggravated abuse of a child statute; and (4) whether [trial counsel] was ineffective for failing to argue that [Daughter]‘s testimony was inadmissible because it had been hypnotically enhanced.
The trial court ruled on those four issues, concluding that trial counsel did not perform deficiently and that, in any event, any deficient performance was not prejudicial.
ISSUES AND STANDARDS OF REVIEW
¶9 As a preliminary matter, Bair asserts that where his arguments are not preserved, we should nonetheless review his claims, applying the doctrines of plain error, ineffective assistance of counsel, and exceptional circumstances.3 Where applicable, we apply these doctrines to Bair‘s arguments and address our application of them in the standards of review outlined below for each issue presented.
¶10 Bair presents several arguments on appeal. First, Bair argues that a new trial is warranted because portions of the separation letter were erroneously admitted into evidence and because the State‘s arguments surrounding the letter amounted to prosecutorial misconduct. “We review a trial court‘s decision to admit evidence under
¶11 Second, Bair asserts that the portions of Daughter‘s testimony that were based on memories recovered after undergoing “therapeutic techniques” constitute “surprise and unfounded trial testimony” that should have been excluded from trial. Because this issue was not preserved, we consider Bair‘s claim for plain error and ineffective assistance of trial counsel. Bair also argues plain error in his third argument, asserting that the trial court plainly erred by admitting the Detective‘s testimony because his testimony constituted “unfounded expert opinion.” Likewise, in his fourth argument, Bair challenges the trial court‘s rule 23B findings and its conclusion that trial counsel was not ineffective. Fifth, Bair requests a new trial, alleging that he was “improperly charged, bound over, and tried upon an ex post facto statute” and that, therefore, the aggravating factor of occupying
¶12 To prevail on a claim of plain error, the appellant, in addition to showing error, “must show that the error should have been obvious to the trial court and that the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Boyd, 2001 UT 30, ¶ 21, 25 P.3d 985 (internal quotation marks omitted). Additionally, because the trial court ruled on this ineffectiveness argument in the rule 23B hearing, “the issues raised present mixed questions of law and fact.” State v. Snyder, 860 P.2d 351, 354 (Utah Ct. App. 1993) (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)). “In ruling on an ineffective assistance claim following a Rule 23B hearing, we defer to the trial court‘s findings of fact, but review its legal conclusions for correctness.” State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct. App. 1998) (internal quotation marks omitted). Similarly, when an “ineffective assistance claim is first raised on direct appeal, this court can . . . determine that the defendant was denied effective assistance of counsel [only] if it can do so as a matter of law.” Snyder, 860 P.2d at 354.
¶13 Last, Bair claims that the doctrine of cumulative error applies. “Under the cumulative error doctrine, we will reverse only if the cumulative effect of . . . several errors undermines our confidence . . . that a fair trial was had.” State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (second omission in original) (internal quotation marks omitted). “In assessing a claim of cumulative error, we consider all the identified errors, as well as any errors we assume may have occurred.” Id.
ANALYSIS
I. The Separation Letter
¶14 Bair raises several challenges to the admission of the separation letter. First, he argues that
A. Admissibility of the Separation Letter
¶15 The portions of the separation letter that were admitted state,
I was very good for a period of time, but eventually my problems caught up with me, and I slipped back into old ways.
I am addicted to sex itself, not to the intercourse. I rarely have had intercourse. I am addicted to the touchy/feely-play around part of sex.
I have spoken with a psychologist at the McKay-Dee Behavioral Medicine Center. He told me that I have a clearly addictive pattern. This is an emotional disorder, and he said it was pretty much similar to what those with homosexual tendencies go through. I asked about treatment and cure. He said that the cure rate is about 50%. Not very good percentage.
I have not indulged in any sexual activity for many months, but I have strong emotions about it. I know that I can‘t do this on my own, and I‘m pretty sure that I need help.
The trial court permitted these portions of the separation letter to be admitted, determining that these excerpts “show intent, knowledge, or absence of mistake or accident pursuant to
¶16 “A three-part analysis is applied to determine whether evidence is admissible under
1. Proper Non-Character Purpose Under Rule 404(b)
¶17
¶18 In a hearing on a motion in limine held months before trial, the State argued that the separation letter would be used to satisfy the specific intent element of the charges. See generally
¶19 Bair argues that the State‘s intent argument is “propensity evidence in disguise” and that the State is essentially arguing an “addiction-equals-molestation” theory. We disagree with this characterization of the State‘s argument. As the State explained, its “theory was not that Bair‘s addiction must have driven him to abuse [Daughter], but rather that his admitted addiction demonstrated his intent in touching [Daughter].” Additionally, even if admission of the letter prompted the jury to infer Bair acted in conformity with his addiction,
¶20 The separation letter does provide evidence of Bair‘s specific intent to arouse or gratify his sexual desires, which is a proper, noncharacter purpose under
2. Relevance Under Rules 401 and 402
¶21 Next, we determine whether the separation letter constitutes relevant evidence because “[e]vidence which is not relevant is not admissible,”
3. Probative Value Versus Unfair Prejudice Under Rule 403
¶22 Last, “we must determine whether [the] probative value of the evidence is substantially outweighed by the danger of unfair prejudice under
¶23 To determine whether unfair prejudice outweighs the probative value of the separation letter, we apply the factors originally described in State v. Shickles, 760 P.2d 291 (Utah 1988), which are commonly referred to as the Shickles factors. These factors are
the strength of the evidence as to the commission of the other [bad acts], the similarities between the [acts], the interval of time that has elapsed between the [acts], the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.
Id. at 295-96 (internal quotation marks omitted).
¶24 “[T]he strength of the evidence as to the commission of the other [bad acts],” see id. at 295 (internal quotation marks omitted), is the most ambiguous of the Shickles factors in this case. Although the authenticity of the separation letter is undisputed, the contours of the bad act it purportedly illustrates is disputed. The State argues that the
¶25 Bair does not address the next Shickles factor in his brief—“the similarities between the [acts].”6 See Shickles, 760 P.2d at 295 (internal quotation marks omitted). Here, the evidence weighs more strongly in favor of admission of the letter. The “touchy/feely” and “play around” aspects of sex that Bair described himself as having an addiction to essentially comprise the abuse Daughter described.
¶26 The next Shickles factor—the length of time between the “acts“—also weighs in favor of admission. Bair placed the letter on Mother‘s windshield in August 1996 and the abuse occurred sometime between February 1, 1997, and December 31, 1998. The State‘s inference that after “many months” of repressing his sexual urges, Bair succumbed to them and abused Daughter becomes stronger in light of how close in time the writing of the letter and the abuse occurred.
¶27 Next, we must evaluate the State‘s need for this evidence and the “efficacy of alternative proof.” State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988). The State argues that the separation letter was necessary because evidence of specific intent would not otherwise be available. However, during the hearing on the motion in limine, the State admitted that evidence of specific intent is generally not available in cases like this. While having some evidence of specific intent is better than having none, we are not convinced that the State needed this evidence to prove Bair‘s specific intent. We agree with Bair that, as in most other cases where evidence of specific intent is not available, “[t]he State could have easily argued that touching a child in the manner described by [Daughter], if believed, could be for no other reason than sexual gratification.” See generally State v. Watkins, 2011 UT App 96, ¶ 18, 250 P.3d 1019 (determining that the lack of an alternative explanation left the jury with the reasonable inference that defendant intended “to arouse or gratify his sexual desire” when he entered the child victim‘s bedroom and “kissed Child wetly on the side of her head for approximately three minutes and . . . pinched and rubbed her buttocks for approximately two minutes” (internal quotation marks omitted)), cert. granted, 250 P.3d 1187 (Utah 2011). And indeed, the inference to be drawn that the sexual abuse occurred for no other reason but to “arouse or gratify” Bair‘s sexual desire, see
¶28 Last, we must consider the prejudicial effect of the evidence and whether it was likely to “rous[e] the jury to overmastering hostility.” Shickles, 760 P.2d at 296. The letter indicates that Bair had, at the time of writing, suppressed his impulses to “indulge[] in . . . sexual activity for many months” and that he felt he needed professional help with the “strong emotions” he battled. These statements suggest that several
¶29 Bair also describes the State‘s use of the letter as a means to imply that Bair had an “overmastering sex addiction that [caused him to] molest[] his own child, . . . [which] confused the issues of the case and misdirected the attention of the jury to convict on speculation and fear.” We disagree. As stated above, the letter itself did not clearly lead to the conclusion that Bair‘s vague assertions of a sex addiction resulted in his sexually abusing Daughter. To the contrary, and conceded at trial by the State, the letter is silent as to whether his sex addiction applies to adults, children, or both. Although the admissions of marital infidelity and an addiction to sex could affect the jury‘s perception, both are certainly less egregious than the child abuse of which Bair is accused. Cf. State v. Burke, 2011 UT App 168, ¶¶ 39-40, 256 P.3d 1102 (noting that in the context of a trial for forcible sexual abuse against an adult female, an “allegation that [on the same evening of the offense charged, the defendant also] committed a sexual offense against a four-year-old child may have an emotional impact on a jury that could suggest a decision on an improper basis,” while the opposite—evidence of forcible sexual abuse of an adult female presented during a trial for aggravated sexual abuse of a child—would not impact the jury in such a way), cert. denied, 263 P.3d 390 (Utah 2011). Accordingly, we doubt that the separation letter “would have caused the jury to hold an increased hostility toward” Bair, weighing in favor of admission, see State v. Bradley, 2002 UT App 348, ¶ 36, 57 P.3d 1139.
¶30 We have determined that four Shickles factors weigh in favor of admission—the strength of the bad acts evidence, the similarities, length of time, and prejudice factors—and two weigh against admission—the need and efficacy factors. We note that although the letter is not highly probative of intent, it is also not unfairly prejudicial. Therefore, because we “indulge a presumption in favor of admissibility,” see State v. Dunn, 850 P.2d 1201, 1222 (Utah 1993), and because
B. Propriety of the State‘s Arguments Surrounding the Separation Letter
¶31 Bair argues that because the letter refers only to sex acts with adults, not children, the State needed to supply an expert witness to make the logical leap from the statements in the letter to sexual abuse of a child. Bair‘s argument, however, is based on his mischaracterization of the State‘s arguments surrounding the letter. The letter was admitted as evidence of Bair‘s intent; the State did not make the “addiction-equals-molestation” argument that Bair urges. Additionally, the State‘s use of the letter to demonstrate Bair‘s specific intent was not based on any sort of “specialized knowledge” within the ambit of
¶32 We also reject Bair‘s argument that the State committed prosecutorial misconduct in its use of the separation letter. Specifically, Bair argues that the State “clearly knew and was well aware that Bair‘s admissions and comments in the separation
¶33 Here, the State did not affirmatively argue that the letter referred to an addiction to “touchy/feely” sex acts specifically with children. Rather, the State acknowledged that the letter was silent as to whether Bair‘s claimed addiction involved adults, children, or both. The jury is certainly justified in weighing the ambiguities and weaknesses in the evidence in reaching its verdict, and the prosecutor did not commit misconduct by pointing out those uncertainties. Cf. id. ¶ 44 (determining that no prosecutorial misconduct occurred where “[t]he State merely urged the jury to consider evidence already determined admissible“). Moreover, the fact that the letter was silent as to the age range of Bair‘s preferred sex partners also could have been construed by the jury in favor of Bair. Accordingly, Bair‘s prosecutorial misconduct claim fails.7
II. Recovered Memories
¶34 Bair contends that the trial court plainly erred by admitting Daughter‘s testimony to the extent her testimony was “tainted” by hypnosis or other “scientific intervention which purportedly ‘recovered memory’ or ‘refreshed recollection.‘”8 We disagree.
¶35 Plain error requires a showing that “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (alteration in original) (internal quotation marks omitted). The “harm” factor in the plain error analysis “is equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel.” See State v. Dean, 2004 UT 63, ¶ 22, 95 P.3d 276.
¶36 Here, Bair argues that because “[t]he law at the time of trial was clear” regarding refreshed and recovered memories, the trial court should have prohibited Daughter‘s testimony to the extent her testimony was influenced by hypnosis or other such techniques. Specifically, Bair contends that Daughter‘s testimony that she was not successfully hypnotized was insufficient for the trial court to continue the trial without first conducting a hearing in limine to determine whether the hypnosis-induced testimony was admissible. Additionally, Bair‘s argument relies on the belief that the relaxation techniques Daughter underwent lacked the “necessary threshold reliability” to be admissible, see Franklin v. Stevenson, 1999 UT 61, ¶ 20, 987 P.2d 22 (emphasis omitted).
¶37 Bair‘s argument fails because even if he can demonstrate that the trial court erred, he cannot demonstrate that the error prejudiced him. For the sake of argument, we will assume, without deciding, that the trial court should have stopped the trial and held a hearing in limine after Daughter
¶38 The memories Daughter had before undergoing therapy are recorded in an interview she had at the CJC with the Detective and another investigator (collectively, the investigators) shortly after she reported the abuse. In that interview, Daughter explained that Bair had abused her multiple times over the course of a year or less while she was between seven and eight years old and while he was living in an apartment in Layton. Daughter told the investigators that Bair would kiss her on the lips; “stick his tongue in” her mouth; play with her nipples; put his hands down her pants and rub her vagina, buttocks, and “all the stuff down there“; and that on one occasion Bair touched her “inside” with his finger. She told the investigators that she specifically remembered the instance of penetration because it “scared [her]” and “made [her] feel sick.” She explained that each session of abuse occurred in Bair‘s bedroom while Sister and Son were watching TV in the other room, and that each time the abuse lasted between thirty and forty-five minutes. She told the investigators that each time, Bair would “say[] that he was loving [her] up” and tell her that she was pretty. Daughter admitted she could clearly remember only the first and last instances of abuse but that she knew the abuse occurred more than twice. She hesitated to estimate how many times the abuse occurred, but when prompted, she guessed somewhere between “five to ten, maybe fifteen” times. She was unable to remember a time of year to help identify when the abuse occurred. She described the abuse as having promptly ended one day, when in the middle of abusing her Bair “just said it was wrong[ a]nd he got up and he left.” She told the investigators that Bair instructed her not to tell anybody and that he described the abuse as their “little secret.” She told the investigators that she had denied being abused when Mother asked her once in the past because she “didn‘t want [Bair] to get in trouble.” Daughter also explained that when she was in sixth grade, she disclosed the abuse to Sister and that she ultimately reported the abuse to Mother out of concern for Sister and a stepsister.
¶39 Daughter‘s trial testimony was largely the same, save for a few small differences: she testified that she believed the abuse occurred during the “warmer” part of the year; she described her body parts with more specificity, using the terms “vaginal area” and “clitoris” instead of “all that stuff down there“; she said that in addition to saying he was loving her up and calling her pretty, Bair would tell Daughter that she was his best friend and that Sister would be jealous of her; she testified that one time Sister and Son were outside playing volleyball, not watching TV, while the abuse occurred; she estimated the abuse to have occurred three to five times, rather than five to fifteen; she testified that after disclosing the abuse to Sister in sixth grade, Sister begged her not to tell Mother about it; and she provided additional details describing why she finally came forward, including that she was having nightmares and visiting an online forum for victims of abuse. Daughter identified two of these statements from her testimony as being the product of “recovered memories“—the claim that the abuse occurred during the warmer part of the year and that it occurred on three to five separate occasions. Thus, had the trial court restricted Daughter‘s testimony to pre-therapy memories, as far as the record indicates, only those two statements would have been omitted at trial. This hardly amounts to a showing of prejudice under a plain error analysis. Indeed, even assuming that all of these discrepancies resulted from memory-recovering therapy and should have been excluded from Daughter‘s trial testimony, the statements Daughter made during the CJC interview, which coincide with the bulk of Daughter‘s trial testimony, provided sufficient evidence for the jury to convict Bair of both charges.
III. The Detective‘s Testimony
¶40 Next, Bair contends that the trial court committed prejudicial error by admitting the Detective‘s testimony. Specifically, he argues that the Detective‘s “testimony amounted to ‘expert’ testimony for which the State did not provide notice” and failed to establish sufficient foundation, and that the Detective‘s testimony violated
A. Expert Testimony Argument
¶41 Bair points to several specific statements in the record to demonstrate that the Detective‘s testimony amounted to opinion statements “based upon his purported experience.” Implicitly, Bair concludes that his utterance of opinion statements and reliance on personal experience necessarily elevated the Detective‘s testimony to expert testimony.
¶42 However, because Bair fails to adequately brief this issue, we decline to address it. To adequately brief an issue, appellants must include in their briefs their “contentions and reasons . . . with respect to the issues presented, . . . with citations to the authorities, statutes, and parts of the record relied on.”
¶43 Here, Bair cites the Detective‘s opinion-like statements in the record;
B. Rule 608 Argument
¶44 Bair also challenges the Detective‘s testimony as “inadmissible opinions that improperly vouched for [Daughter‘s] credibility, improperly discredited the veracity of the defendant, and invaded the province of the jury” under
¶45
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
¶46 The Utah Supreme Court‘s decision in State v. Adams, 2000 UT 42, 5 P.3d 642, is instructive. In that case, the defendant argued that his former paramour invented the allegations of sexual abuse against him and coached her adult daughter, who had Down‘s Syndrome, into reporting the abuse as a means of retaliation for their breakup. See id. ¶¶ 2, 6. The supreme court determined that a psychologist could testify as an expert witness regarding the victim‘s capacity to be coached into reporting a fabricated abuse allegation, adopting the court of appeals’ holding that the doctor‘s “testimony did not violate
¶47 Here, none of the Detective‘s testimony “directly addressed” Bair‘s or Daughter‘s “veracity,” see Adams, 2000 UT 42, ¶ 14. Rather, his testimony merely offered the
observation that Daughter‘s trial testimony was consistent with the allegations she made during the CJC interview. Additionally, the Detective‘s testimony that abuse victims often delay reporting reflects a fact already recognized by Utah courts—that “[d]elayed discovery and reporting are common in [child sexual abuse] cases,”10 see State v. Hoyt, 806 P.2d 204, 209 (Utah Ct. App. 1991). Simply noting that abuse victims often delay reporting did not, as Bair claims, “invade[] the province of the jury by suggesting that [Daughter] . . . is an actual victim, rather than simply a witness who has made allegations.” Additionally, Bair‘s trial counsel‘s cross-examination of the Detective garnered several favorable admissions, presumably lessening the impact of the Detective‘s testimony regarding Bair‘s demeanor. Because rule 608 “only bars direct testimony regarding the truthfulness of a witness on a particular occasion,” and does
IV. Ineffective Assistance of Counsel
¶48 Bair next contends that his trial counsel was ineffective for several reasons. We address each argument in turn.
¶49 As stated above, to succeed on an ineffective assistance of trial counsel claim, “a defendant must . . . demonstrate that counsel‘s performance was deficient, in that it fell below an objective standard of reasonable professional judgment,” and “that counsel‘s deficient performance was prejudicial—i.e., that it affected the outcome of the case.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “Defendant not only has the burden of meeting both prongs of this test, but must also overcome ‘a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.‘” State v. Snyder, 860 P.2d 351, 354 (Utah Ct. App. 1993) (quoting Strickland, 466 U.S. at 689). Additionally, because both deficiency and prejudice must be shown, a reviewing court can “‘dispose of an ineffectiveness claim on‘” either ground. See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993) (quoting Strickland, 466 U.S. at 697). Lastly, “[i]n ruling on an ineffective assistance claim following a Rule 23B hearing, we defer to the trial court‘s findings of fact, but review its legal conclusions for correctness.” State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct. App. 1998) (internal quotation marks omitted).
A. Failure to Call an Expert Witness To Rebut the State‘s Arguments Regarding the Separation Letter
¶50 Bair contends that he received ineffective assistance from his trial counsel in light of trial counsel‘s failure to “consult with [or] retain an expert” to rebut “the State‘s argument concerning the purported link between an ‘addiction to sex’ and the ‘intent’ to molest a child for sexual gratification.” This issue was presented during the hearing on the rule 23B remand. At this hearing, Bair called a doctor “as a proposed expert on the lack of a connection between an addiction to sex with adults and pedophilic behavior.” The doctor testified that although “he is not aware of any scientific studies showing that an addiction to sex with adults makes it more likely that a person would molest children,” “situational offenders,” who are by definition “not sexually attracted to children, . . . still molest them for other reasons.” The doctor explained “that 52-58% of child sex abusers are not sexually attracted to children.”
¶51 In its findings of fact from the rule 23B hearing, the trial court determined that trial counsel decided not to call an expert witness to testify as to this matter out of concern that it “would be ‘more damaging‘” because it “would have highlighted the [separation] letter to the jury by making it a focus of testimony from his expert, as well as from an anticipated rebuttal expert from the State.” The trial court also noted that trial counsel feared that developing an expert‘s testimony on this matter “would open the door to potentially damaging factual testimony from other witnesses about [Bair]‘s sexual addiction,” including testimony that Bair‘s addiction was not “limited [in] nature” and that he “had spent thousands of dollars on prostitutes while still married to [Mother].” The trial court concluded that “[t]he proposed expert testimony would not have rebutted the State‘s claim” and that trial counsel‘s concerns were legitimate. In other words, the trial court determined that trial counsel did not perform deficiently and, that even if he had performed deficiently, Bair suffered no prejudice from trial counsel‘s decision to forgo an expert witness on this matter.
B. Failure to Call Certain Witnesses
¶53 Bair also asserts that trial counsel was ineffective for failing to call three specific witnesses (the three witnesses). Bair argues that the three witnesses would have testified that “love up” was a phrase Bair used regularly, in a non-sexual manner, and that Sister and Son “were especially needy and clingy with [Bair] when they were young (and close in time to the period of alleged abuse),” so much so that Bair “could never be alone with any one of them for any substantial period of time,” thereby undermining Daughter‘s allegation that the abuse occurred while they were alone for thirty- to forty-five-minute periods.
¶54 During the rule 23B remand, the trial court determined that “[n]one of the[ three] witnesses knew [Bair] or [Daughter] at the time of the abuse” and that therefore “the testimony of these witnesses would have had little relevancy to the issues that were before the jury.” The trial court noted “that these witnesses would be unable to credibly comment on the meaning of ‘love up’ at the time the abuse occurred or whether [Bair]‘s public use of this term was different from his private use of this term with [Daughter].”
¶55 We agree with the trial court. Even if the three witnesses were permitted to testify, their proposed testimonies are, at best, “speculative of how the term ‘love up’ was used with [Daughter]” and of how Bair‘s children interacted with him during the period of abuse. In other words, Bair has failed to convince us that he was prejudiced by trial counsel‘s decision to not call any of the three witnesses. Additionally, as the trial court stated, because trial counsel “could reasonably decide not to call these witnesses, given that none of them had any information regarding the time period in question, as well as the fact that none of their claims were actually inconsistent with [Daughter]‘s allegations,” Bair has failed to demonstrate that trial counsel performed deficiently. See generally Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994) (recognizing that both the prejudice and deficiency prongs of the ineffective assistance of counsel analysis need to be met to succeed on a claim of ineffectiveness).
C. Failure to Adequately Prepare the Case
¶56 Bair contends that trial counsel failed to adequately prepare his case for several reasons: trial counsel “met with Bair only at the courthouse on days Bair appeared for court hearings“; these meetings would last for only forty-five minutes to an hour; trial counsel did not fully discuss with Bair the case, discovery, and the evidence the State had against him; and trial counsel did not “speak with any witness listed in police reports . . . or any possible witnesses dealing with specific State theories or other lines of defenses or impeachment which [trial counsel] should have adduced from police reports.” The trial court determined that trial counsel “spoke with [Bair] about the case on multiple occasions and addressed both potential witnesses and strategies,” and that he did not perform deficiently.
¶57 First, we “decline to determine what amount of time counsel must spend with a defendant to ensure that the representation does not fall below an objective standard of reasonableness.” See id. at 526. Second, Bair merely describes the additional
D. Waiver of the Preliminary Hearing
¶58 Bair also contends that trial counsel was ineffective for waiving the preliminary hearing. Bair argues that “there was absolutely no reasonable trial strategy for full waiver of the hearing” and that he was prejudiced by the waiver. Specifically, Bair asserts that had there been a preliminary hearing, Daughter‘s “surprise testimony” regarding her recovered memories “would have been elicited and could have been investigated and dealt with at a more proper time pretrial“; “that most, if not all, of the objectionable trial testimony would have been elicited and could have been dealt with pretrial through proper motions in limine,” including the Detective‘s “‘expert’ testimony“; and that “[t]rial counsel could have also used this as an opportunity to examine potential State or defense witnesses in order to solidify and preserve their testimony,” including testimony from Sister that Bair presumes would have refuted Daughter‘s claim that she disclosed the abuse to Sister before she came forward to authorities.12
¶59 Bair‘s claims of prejudice are speculative and insufficient for us to conclude that had a preliminary hearing been held, there was a reasonable likelihood of a more favorable result at trial for him. See generally Fernandez, 870 P.2d at 877. Accordingly, this ineffective assistance of trial counsel argument also fails.
V. “Position of Special Trust” or “Natural Parent” Aggravating Factor13
¶60 Bair argues that he is entitled to a new trial because the trial court employed an ex post facto version of the Utah Code. Bair admits that this argument was not preserved but argues that the plain error exception to preservation should apply.14 See generally State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (identifying plain error as an exception to the preservation rule). As stated before, the plain error doctrine requires a showing that “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more
¶61 Bair explains that he was prosecuted under the 1998 version of
The version of
¶62 Therefore, we conclude that the trial court committed plain error. Application of the 1998 version of
¶63 The State argues that because the jury could have based its convictions of both counts of aggravated sexual abuse on the other aggravating factor charged, any error in the trial court‘s use of the natural parent aggravator was harmless. We disagree. While “[o]ne might argue that we should affirm the . . . verdict if there is sufficient evidence to support a finding of guilt under either of the aggravating circumstances therein presented,” id., “[w]e conclude . . . that such an avenue is not open to us here,” id. at 1159. The other aggravating factor charged permitted the jury to convict Bair if it determined that he “caused the penetration, however slight, of the genital or anal opening of the child by any part or parts of the human body other than the genitals or mouth” (the penetration aggravator). See
¶64 Here, the jury convicted Bair of both counts of aggravated sexual abuse, but did not specify the aggravating factor upon
¶65 Nevertheless,
[w]hen an error at trial taints a defendant‘s conviction, as it has here, we have “the power to enter judgment for a lesser included offense . . . if (i) the trier of fact necessarily found facts sufficient to constitute the lesser offense, and (ii) the error did not affect these findings.”
State v. Carruth, 947 P.2d 690, 693 (Utah Ct. App. 1997) (omission in original) (quoting State v. Dunn, 850 P.2d 1201, 1209 (Utah 1993)), aff‘d, 1999 UT 107, 993 P.2d 869; see also Dunn, 850 P.2d at 1209 (relying “on [the court‘s] general power to modify criminal judgments on appeal to direct entry of judgment for” a lesser included offense). “[W]here . . . two crimes are such that the greater cannot be committed without necessarily having committed the lesser, then as a matter of law they stand in the relationship of greater and lesser offenses . . . .” State v. Hill, 674 P.2d 96, 97 (Utah 1983) (citation and internal quotation marks omitted).
¶66 Sexual abuse of a child is a lesser included offense of aggravated sexual abuse of a child. See State v. McCloud, 2005 UT App 466, ¶ 15, 126 P.3d 775. Compare
Before you can convict the defendant, Robert David Bair, of AGGRAVATED SEXUAL ABUSE OF A CHILD, as charged in Counts One and Two of the Information, you must find from the evidence beyond a reasonable doubt, all of the following elements of the crime.
1. That on or about February 1, 1997 through December 31, 1998, in Davis County, Utah;
2. The defendant, Robert David Bair;
3. did knowingly, intentionally, or recklessly;
4. touch the anus, buttocks, genitalia, or the breast of the female child or otherwise took indecent liberties with a child, or caused a child to take indecent liberties with the actor or another;
5. That such acts were performed with the intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person regardless of the sex of any participant;
AND
6. a. the offense was committed by a person who occupied a position of special trust in relation to the victim; OR
b. the accused cause[d] the penetration, however slight, of the genital or anal opening of the child . . . .
Steps one through five of the jury instruction, which were not affected by the amendment to the statute, follow the statutory definition for sexual abuse of a child, while step
VI. Cumulative Error
¶67 Last, Bair alleges that the cumulative effect of the numerous asserted errors discussed in the preceding pages requires he be granted a new trial. “In assessing a claim of cumulative error, we consider all the identified errors, as well as any errors we assume may have occurred.” Dunn, 850 P.2d at 1229. Here, we determined an error occurred in regard to the last issue, and our framing of the recovered memories issue assumes, without deciding, that an error occurred. Nonetheless, having identified only one error and assumed one other, we “conclude that the cumulative effect of the identified and assumed errors does not undermine our confidence in the essential fairness of the trial.” See id.; see also id. at 1224, 1226, 1229 (rejecting the defendant‘s cumulative error claim despite having assumed for the sake of argument that several errors, which individually were not prejudicial, occurred at trial).
CONCLUSION
¶68 The trial court did not err in admitting the separation letter as evidence of Bair‘s specific intent under rules 404(b), 401, 402, and 403 of the Utah Rules of Evidence, and the State was not required to present its theories on the import of the separation letter through expert testimony. Additionally, the State‘s use of the separation letter at trial did not constitute prosecutorial misconduct. Next, even assuming the trial court committed error by admitting the portions of Daughter‘s testimony that may have been influenced by memory-recovering therapies, Bair cannot demonstrate that he was prejudiced by these admissions. We decline to address Bair‘s claim that the Detective‘s testimony amounted to expert testimony because it was inadequately briefed, and we determine that the Detective‘s testimony did not violate rule 608(a) of the Utah Rules of Evidence or invade the province of the jury. The trial court correctly determined that Bair‘s trial counsel was not ineffective for failing to call an expert witness to rebut the State‘s arguments regarding the separation letter and that he was not ineffective for failing to call the three witnesses. The trial court also correctly rejected Bair‘s arguments that trial counsel was ineffective for inadequately preparing his case and waiving the preliminary hearing. Bair‘s cumulative
James Z. Davis, Judge
¶69 WE CONCUR:
Gregory K. Orme, Judge
Michele M. Christiansen, Judge
Notes
Id. at 1212 n.8 (emphasis omitted) (quoting State v. Byrd, 385 So. 2d 248, 252 (La. 1980)).“[t]his procedure does not constitute interference with the function of the trial judge or jury in a criminal trial, but rather constitutes action in accordance with the findings of the trier of fact. Moreover, this procedure does not deprive the defendant of his right to have a trial judge or jury decide on the proof of the elements of the lesser and included offense, but rather recognizes that the trier of fact has already made that decision.”