*1 Agree-m solely App the terms premised ent-6 Utah, Appellee, and Plaintiff STATE of
CONCLUSION Jr., Phillip Jim BUJAN Appellant. and facts below indicate undisputed 22 The voluntarily made each tax that Lamar West No. 20050206-CA. Lamar Property, and that payment on the payments Appeals a claim for these of Utah. made Court West never sought any other Agreement or Aug. prior to termi- remedy against the Wests According to the Agreement. nation affidavits, Lamar uncontroverted
Wests’ not to them several occasions told
West course paying taxes. This
worry about by Lamar West excused
of behavior obligation to contractual from their
Wests The trial
pay the taxes themselves. that Wests did not
properly determined Lamar Agreement allowing
breach taxes, properly granted pay
West in the
summary judgment quieting title convey Prop- ordering Case
Wests
erty. is not a also conclude that Case We Agreement, either
party or bound therefore
individually or as a trustee. We determination that the trial court’s
reverse Agreement and its award breached the
Case theory, remand attorney fees on that proceedings consis- for further
this matter opinion. with this
tent M. CONCUR: JUDITH WE DAVIS, Judges. Z.
BILLINGS and JAMES West, against pursu- the estate of Lamar merely costs that a direct award 6. We hold fee imposed opinion Wests Agreement express as whether the could cannot be no ant the state the record Case or the Trust on or the Trust on such award from Case collect We the Wests theory. do not decide whether before us. legal equitable some other attorney may fees and to an award of be entitled *2 Jones, Ralph Dellapiana M. and Linda Salt Legal Association, Lake Defender Salt Lake City, Appellant. Shurtleff, Attorney General,
Mark L. Leonard, General, Kris C. Attorney Assistant City, Appellee. Salt Lake GREENWOOD, DAVIS, Judges Before and THORNE.
OPINION GREENWOOD, Presiding Associate Judge:
¶ 1 Bujan Phillip Jim Jr. ap- child, peals rape conviction for see (2003), § Utah Code Ann. 76-5-402.1 aggravated child, sexual abuse of a see id. (2003), § degree 76-5-404.1 both first felo- appeal, nies. On by allowing court abused its discretion in violation of rules. We reverse and remand.
BACKGROUND ¶ 2 Tina Binkerd and Defendant divorced years after three of marriage. Their prompted, divorce in part, Binkerd’s discovery having an af- fair with her best friend. divorce, practitioner and nurse Linda Lewis and Frasier Binkerd time of the At the K.B., Primary At who Children’s Medical Center. daughters: had two trial, A.B. Binkerd also Frasier testified that their examination
was born
relationship.
son, J.B.,
previous
supported
and neither
from
was “unremarkable”
that K.B. had been the victim
disproved
nor
years after Defendant
4 For several
*3
Specifically, Frasier testi-
of sexual abuse.
divorced,
had little inter-
Defendant
Binkerd
no ar-
fied that KB.’s examination revealed
daughters. How-
with Binkerd or his
action
discontinuity
disruptions in K.B.’s
eas of
2001,
sought to renew
ever,
he
and
in
called
however,
clarified,
that re-
hymen. Frasier
and A.B.’s lives.
in K.B.
his involvement
abuse indi-
in
field of child sexual
search
subsequently began
girls
and the
Binkerd
injuries
hymen
to the
“have
cated
and “build-
Defendant
going
park
to the
with
completely,
very rapidly,
potential
to heal
Eventually, Bink-
relationship again.”
ing a
scarring.”
without
evidence of
and often
allowing
to tend
began
Defendant
erd
boyfriend
on
and her
went
while she
children
¶
trial,
par-
a
At
Binkerd testified about
overnight trips Wendover.
that occurred sometime
ticular incident
¶
evening
question,
in
in October
5 On
2001,
and her
to Christmas in
when she
2001,
was on
of
Binkerd
or November
boyfriend
returning
trip
from a
were
stay
gone to
with
trip.
J.B. had
Wendover
house,
Upon arriving at her
Wendover.
visiting
K.B.
A.B.
an aunt.
friends and
was
screaming
Bink-
K.B.
inside.
Binkerd heard
sitting on her bed in her
stated that she
room,
erd ran to K.B.’s
where she discovered
Defendant came
bedroom when
basement
top
lying
K.B.
her bed with Defendant
her.
into her room and kissed
downstairs
holding
arms
“holding
her
and
her
first
anything of it” at
“didn’t think
K.B.
fully
his
Both were
legs
leg.”
her
down with
However,
my
K.B. fur-
dad.”
“because he’s
started
Binkerd testified
she
clothed.
proceeded
ther testified that Defendant
screaming
what was
and asked Defendant
down,
her
her
tried to touch
hold
arms
on,
K.B.
whereupon
replied
he
going
breasts,
put
pants.
down her
and
his hand
spoiled
and she’s a
brat.”
“was out
control
pants
her
unzipped
He
his
and removed
then
crying,
that K.B. was
Binkerd also stated
feet.
to her
pants
pulled
and
her underwear
nearly
Pri-
screaming,
hyperventilating.
penis
her
put
his
inside
stated
he
She
incident,
K.B.’s
Binkerd described
or to that
minutes,
pen-
vagina for five or ten
“very
close.”
attitude toward
much,”
that after-
very
“hurt
etration
however,
incident,
Binkerd testi-
After that
not tell
told her she “better
ward Defendant
K.B.’s attitude toward
fied that
anybody.” K.B.
that she was afraid
stated
she wanted
changed completely” and
“almost
the incident because
her mother about
tell
“nothing to with him.”
do
her
come after
Defendant would
she feared
-
¶
cross-examination, Binkerd stated
9 On
thought
her
the incident was
because she
2001,
announced to
that in late
fault.
sepa-
apparent period of
family that after an
rape
she
K.B. testified that after
ration,
girlfriend,
planned
he
to return
alone with
and was never
hated Defendant
for their divorce.
Binkerd blamed
whom
dropped,
again.
grades
Her
in school
him
daughters
and her
that she
Binkerd testified
in
tried to commit suicide.
and she
decision.
angry
Defendant’s
about
increasing hostility and
response to KB.’s
thereafter,
his re-
Defendant ended
Soon
members,
family
Binkerd
aggression toward
A.B.
with K.B. and
newed involvement
counseling. In March
after
put K.B. in
session, K.B. told her mother
counseling
trial,
counsel identified
At
Defendant’s
Thereafter,
raped
had
her.
discrepancies
K.B.’s
alleged
between
several
including
rape,
also
others about
she-
told
in the
her
Oberg
Daphne
and Detective
her counselor
Oberg.
with Detective
pre-trial
interview
County Sheriffs Office.
the Salt Lake
K.B. testified
noted that
Trial counsel
in
but she
alleged rape
occurred
alleged rape to
revealing
after
7 Soon
Oberg might
it
mother,
Lori
told Detective
Dr.
earlier
K.B. was examined
law,
in 2000. Trial counsel also
have been
noted
which we review for correctness.”
Martin,
34, 29,
had told Detective
that K.B.
she
room
instance,
wasn’t sure
which
the incident oc- 805.
In this
because we address
Finally,
curred.
trial counsel identified an
meaning
evidence,
aof
rule of
there
concerning
alleged discrepancy
question of law and we assess the trial
response
actions and
when Defendant
ruling
court’s
for correctness.
allegedly
pants.
reached down her
¶ 15
Defendant also
that he
witness,
11 As its final
the State called
prejudiced by
the admission of the testi
testify.
Trial counsel mony and that we must reverse the trial
objections to
raised two
the admission of
“If,
court.
evidentiary
the absence of the
K.B.’s out-of-court statements to Detective
errors, there
ais
reasonable likelihood
aof
*4
Oberg.
objected
Counsel first
when the more
defendant,
favorable outcome for
we
planned
State announced it
call
to
Detective must reverse the conviction.” State v. Rim
Oberg
testify.
to
point,
At this
counsel stat- masch,
(Utah 1989).
775 P.2d
407
Oberg’s
ed that
testimony
Detective
would
“hearsay
constitute
put-
to the extent she’s
ANALYSIS
ting
prior
statement,”
on a
inconsistent
whereupon the State
indicated
Detective
I. Preservation
Oberg
testify
would
prior
consistent state-
¶
reaching
16 Before
the merits of Defen-
ments.
arguments,
dant’s
we first review the State’s
¶
objection
12 Defense counsel’s second
claim that we need not consider Defendant’s
when
came
the State asked
Oberg
Detective
801(d)(1)(B)
argument. The
ar-
State
about her interview with K.B. Counsel ob- gues that because
Defendant failed to
jected
ground
on the
Oberg’s
that Detective
serve the
argue
issue below and
does
testimony
duplicative
be
“would
to the extent
plain
exceptional
error or
circumstances
going
she is
to restate [K.B.’s] statements to
appeal, he has waived the issue.
again
her” and
asserted
would
“[this]
be
¶
general
17 “A
appellate
rule of
hearsay.” The
question
court stated that the
review in criminal cases in Utah is
a
necessarily
issue,”
“didn’t
a hearsay
involve
contemporaneous objection or some form of
agreed
but
ap-
would
specific preservation of claims of error must
ply. The
then
State
that it
elaborated
would
a part
be made
of the trial court record
arguing
be
“under
801
[r]ule
this is
[that]
a
appellate
before an
court will review such
prior
statement,”
consistent
that would be
appeal.”
Johnson,
claim on
v.
State
774 P.2d
used to
attempts
refute defense counsel’s
(Utah
1989)
1144
(quotations and cita
“discredit what
has
[K.B.]
said.” At this
omitted). Moreover,
tion
grounds
“the
point,
stated,
the trial
“Okay.
court
Go for-
objection
distinctly
must
specifi
be
ward.”
provided
then
de-
cally stated.” Id.
rape
tails of
2001
as K.B. had recounted
them to her.
preservation
18 “The
rule serves two im
portant policies.”
Holgate,
v.
State
jury
13 A
subsequently found Defendant
¶74, 11, 10
provide
P.3d 346. The first is to
guilty
charged.
appeals.
“
‘an opportunity
address
and,
appropriate,
claimed error
if
correct
ISSUES AND STANDARDS OF REVIEW
”it.’
(quoting
Eldredge,
Id.
State
773 P.2d
(Utah 1989)).
appeal,
On
Defendant raises
two
The second is to
bar
related
issues. He first
that the trial
failing
objection
defendant from
to make an
court abused its discretion
admitting
“with
strategy
‘enhancing]
the defen
hearsay testimony
then,
under rule
of dant’s
acquittal
chances of
if that
fails,
Utah Rules of
question
strategy
Evidence. “The
claiming]
...
on appeal that
of whether
(alterations
evidence is admissible can be
the Court should
Id.
reverse.’”
discretion,
either a question of
which we
original) (quoting
and omission in
discretion,
review for
Bullock,
(Utah 1989)).
question
155, 159
abuse of
or a
791 P.2d
not a
case,
appeal
an issue for
is
consider-
trial counsel
present
19 In the
“forego
did not
ation here. Trial counsel
objections to the admission
raised two
Holgate,
objection,”
policy reason Likewise, Moreover, v. appeal. at n. in State principal Id. 35 5. cases relied on 1. the two (Utah we argument Ct.App.1994), Jennings, its P.2d 566 the State to buttress 875 facially preserve arguments his are distin- claim failed to consider defendant's refused guishable from the instant case. "absolutely legal analysis no provided when he Mead, 58, 1115, supreme UT 2001 n. As authority” Id. at 569 or for his claims. a defendant's chal- declined to consider body opinion, explain Defendant of this we in lenge Utah under Rule of medical objection appeal. sufficiently preserved Moreover, his failed to raise 703 because defendant Evidence brief, adequately appellate his he in court, argue "plain did the issue in Hence, we find the rule 801 issue. briefed circumstances,” exceptional failed or error unpersuasive. argument on this issue State's authority any supporting or provide caselaw 586 dure, response disciplining may him in “we look to decisions under the abandoning Therefore, him retaliation for guidance.”). and in federal rules for
family
Consequently,
in 2001.
premotive
conclude that the
in
embodied
Oberg’s testimony
urges that Detective
common
law and enunciated
Tome is
hearsay because it “did not
inadmissible
equally applicable in the instant case.
any charge
to rehabilitate
‘recent
¶27 Indeed, our research
that
indicates
the rule.”
fur-
fabrication’ under
many jurisdictions,
state courts in
both
explains
ther
prior
“[i]n
that
order for the
post-Tome,
adopted
have
an approach
admissible,
to be
out-of-court statement
similar
holding
to Tome
“[r]ule
proponent
it
must establish that was made at
temporal require
embodies the
predating
time
the motive.”
Tome,
156, 115
ment.”
513
U.S.
S.Ct. 696.
begin
analysis by
26
our
We
not
See,
Martin,
552,
e.g., State v.
Ariz.
135
663
ing
correctly
that rule
states
236,
(1983) (stating
P.2d
238
Ari
under
applied
Federal
801(d)(1)(B),
only
zona’s
way
“[t]he
be
postmotive
Rules of Evidence does not allow
prior
certain that a
consistent
statement
statements to be admitted for a rehabilitative
charge
fact controverts a
of ‘recent fabrica
801(d)(1)(B);
purpose.
See Fed.R.Evid.
or improper
tion
influence or motive’ is to
States,
150, 156, 115
Tome v. United
U.S.
require that the statement be made at a time
(1995)
696, 130
(concluding
S.Ct.
L.Ed.2d 574
possibility
when the
that the statement was
“
rules,
applica
under the federal
‘[t]he
express
purpose
made
of corroborat
principle
ble
is
consistent
ing
bolstering
other
mini
relevancy
statement has no
to refute the mized.”);
Fulton,
accord State v.
333 S.C.
charge unless the consistent statement was
359,
819,
(App.1998);
S.E.2d
see also
bias, interest,
made
before the source
Page,
Ill.App.3d
140 Ill.Dec.
”
incapacity originated.’
(quoting
influence or
(1990)
550 N.E.2d
(holding that
*6
49,
Cleary,
§
E.
McCormick
Evidence
on
prior
a
consistent statement
is admissible
¶
(2d ed.1972))).
105
correctly
The State also
after the
testimony
witness’s
has
at
been
notes that rule
of the Federal
tacked,
only
“but
if it was made before the
binding
Rules
authority
of Evidence is not
arose”);
motive to fabricate
v. Lun
State
Wanosik,
state courts. See State v.
2003 UT stad,
512,
723,
(1993)
259 Mont.
857 P.2d
726
¶
46,
23,
(stating
587 Oberg’s prejudicial hearsay predating requirement of the to the existence 801(d)(1)(B) and, requires as re- reversal. “We will in rule and therefore embodied yet sult, committing have not ad- appellate courts our not reverse court for [the] is postmotive statement whether Vargas, dressed harmless error.” State purposes. (alteration rehabilitative 5, 48, admissible in original) 271 Therefore, narrowly urges that we omitted). the State Rather, citation (quotations and Tome, challenged so as allow construe that the court’s rul- must show “[Defendant] However, that allow- testimony. we believe prejudice.” of Id. ing led to a likelihood ing statements could postmotive consistent omitted). (quotations and citation witness could bolster easily lead to abuses—a case, agree with De 31 this testimony by repeating the same her admission fendant that of Detective persons of of facts number version Oberg’s hearsay testimony to a led reason testify to those out-of-court who could then Sibert, prejudice. 310 157-58, able likelihood of See Tome, 513 U.S. at statements. See (stating going at would be “[i]t P.2d 392 (stating rule addresses rebuttal S.Ct. entirely fabrication, long way discount bolstering the indeed us alleged “not of an told”). police possibility un- officer’s inadmis veracity story [a This would hearsay testimony] exclusions. had some effect purposes dermine the sible deliberations.”). approach the Tome persuaded upon jury’s] are [the We adopt view and therefore better physical There no evidence requirement appears to be motive assault, and no di- K.B.’s sexual among jurisdictions position state prevailing night rectly account of the supporting K.B.’s requirement under the federal as the well Therefore, question. rules of evidence. only provided corroboration ease, regard such, instant With say alleged rape. we cannot As reason to contends that K.B. had Oberg’s testimony constituted that Detective and sexual as allegations fabricate of abuse Hamilton, See State harmless error. First, him sault for two reasons: (Utah 1992) (defining a “harm- P.2d angry K.B. was at argues that “sufficiently error that is less error” as an misbehaving, punishing an him for no conclude there is inconsequential that we Second, place took in 2001. incident likelihood that error affected reasonable angry that K.B. was Defendant contends (quotations proceedings.” the outcome leaving family returning him *7 omitted)). Rather, in in- this and citations Conse girlfriend at the end of 2001. stance, was a likeli- conclude that there quently, argues that K.B.’s out-of- Defendant of likelihood prejudice hood of because “the erg Detective Ob do not court statements to sufficiently high to un- [is] different outcome purpose under rule a rehabilitative (quo- in the verdict.” Id. dermine confidence 801(d)(1)(B) they in were made because omitted). tations and citation approximately years after K.B. rea two ¶33 and remand Accordingly, we reverse against allegations Defen son to fabricate this proceedings with further consistent reasoning under the dant. We conclude that opinion. requiring state cases of Tome and similar statement, the premotive of trial existence DAVIS, JAMES Z. CONCUR: admitting Oberg’s in Detective court erred Judge. testimony concerning hearsay K.B.’s out-of- Consequently, her. court to THORNE, Judge (dissenting): Oberg’s that Detective
State’s contention hearsay testimony rule majori- was admissible under respectfully dissent from 35 I 801(d)(1)(B)fails. opinion, I not ty as do believe 801(d)(1)(B) ap- claim for his rule preserved Prejudicial Error
II. 801(d)(1)(B). De- R. peal. Utah Evid. See ¶30 satisfy objections to the first fendant’s failed Finally, that rule, trial preservation allowing prong in error court’s “ given opportunity alleged court be ‘an to address ness stand. The other inconsisten- and, if appropriate, implicated cies would also claimed error correct have rule ” 801(d)(1)(B). Thus, 74, 11, at the Holgate, it.’ time Defen- objections, dant’s the trial court was (quoting Eldredge, aware P.3d 346 (Utah 1989)). Oberg might non-hearsay some have Accordingly, I would to testimony offer about K.B.’s state- decline to address Defendant’s rule ments, properly overruled Defendant’s argument and would affirm the objections categorical testimony. to her judgment below. ¶ 39 In hindsight, Oberg’s much of testimo- objected 36 Defendant twice to Detective may admissible, ny at not have been least not testimony Oberg’s K.B. about the interview 801(d)(1)(B). non-hearsay rule 801(d)(1)(B) grounds. on rule The first ob- However, objec- at the time of Defendant’s jection Oberg came before took the witness tions, way of knowing trial court had no during Oberg’s stand. The came tes- second Oberg’s testimony stray beyond would timony, but relay before she was asked to issue fear of K.B.’s or other any particular out-of-court statement topics might properly fall within rule objections sought K.B.1 Both to exclude 801(d)(1)(B). Accordingly, testimony Oberg’s K.B. about the interview correctly objections overruled Defendant’s entirety. its they the time al- properly made ¶ 37 properly The trial court overruled testimony lowed the State to elicit about categorical objections these tes- statements, subject K.B.’s out-of-court to De- interview, timony about the even under the continuing fendant’s ability object premotive adopted by today’s majority particular statements that did fall within opinion. During cross-examination, Defen- 801(d)(1)(B). specific timely Such dant attacked K.B.’s direct-examination objections never materialized. being report about afraid to De- objections initial Defendant’s did not actions, “I stating, fendant’s haven’t seen shift the judge burden to the trial court anywhere you’ve said that before.” The weigh subsequent each question implication clear of Defendant’s comment memory of K.B.’s alleged was that K.B.’s fear Rather, purposes applying rule 801.2 something just up she had made objecting burden of to individual stand, i.e., the witness that it was a recent Defendant, statements remained with who fabrication. Defendant also raised other failed to raise the rule issue alleged inconsistencies again. object failure further may subject also have been to rebut- speculate left the trial court to that Defen- 801(d)(1)(B). tal under rule allowing hearsay testimony dant was to come ¶ Any statement made K.B. to in as a matter of trial strategy, in the 2003 interview that was consistent testimony fell within an applicable exclusion with report the idea that K.B. was afraid to exception, or that there was some other *8 Defendant would been have admissible under object. i'eason Defendant’s failure rule charge event, to rebut any the trial court was under no obli- gation she had fabricated this fear on the wit- ongoing unrequest- conduct an question 1. The prompted State's determine[s] whether a consistent state- 801(d)(1)(B) objection Defendant’s second rule premotive postmotive ment was or based on evi- was, "Let's talk about that interview with [K.B.]. presented jury up dence to the to the time the you begin- did What talk to [K.B.] about in the sought, pre- statement's admission evidence ning?” judge jury's presence, sented to the out of the judge's a combination of these two The means. Nearly 2. jurisdictions all of that follow the question normally determination of this would premotive require predicate showings rule admissibility dictate the of the statement. admissibility in the same manner as other evi- dentiary questions. See Frank W. Bullock Jr. & occur, however, Id. For this the trial court Gardner, Steven Prior Consistent Statements and must be informed of the need to this make deter- Rule, the Premotive 24 Fla. St. U.L.Rev. by properly objection. mination focused (1997). jurisdictions, judge In these evaluation ed
testimony. conclusion, bring did not 41 In 801(d)(1)(B) error to the specific attention, did not and thus
trial court’s appeal. See State the issue ¶74, 11, 346. The
Holgate, generalized properly overruled the
trial court raise, De-
objections did object when specifically failed
fendant actually provided hearsay. these circum-
arguably Under
stances, judgment I would affirm
trial court. UT App Utah, Appellee, Plaintiff and
STATE ROBBINS,
Ryan Brett Appellant.
No. 20050156-CA. Appeals of
Court of Utah.
Aug.