STATE OF UTAH, Appellee, v. NEAL OGDEN EDDINGTON, Appellant.
No. 20180597-CA
THE UTAH COURT OF APPEALS
Filed February 16, 2023
2023 UT App 19
First District Court, Logan Department. The Honorable Kevin K. Allen. The Honorable Angela Fonnesbeck. No. 171101138.
Sean D. Reyes and John J. Nielsen, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Neal Ogden Eddington was convicted by a jury of sexual battery and object rape but acquitted of more serious charges, including rape, aggravated sexual assault, and aggravated kidnapping. Prior to trial, the prosecution employed Utah‘s rape shield rule—
BACKGROUND
¶2 Eddington met Emily1 on an ostensibly religious-oriented dating app, and they decided to meet in person for dinner. Afterward, they went to Emily‘s apartment, which she shared with several roommates, to watch a movie. Eddington wanted to watch the movie in Emily‘s bedroom, but she declined that invitation. Instead, they watched it in Emily‘s living room and consensually kissed on the couch during the movie. After the movie ended, Eddington asked to talk privately with Emily, so the two went together to Emily‘s bedroom. This is where their stories diverge.
¶3 According to Emily, Eddington “immediately” grabbed her “by the neck” and threw her onto the bed. He squeezed her throat, ripped her jeans in half, “ripped off [her] bra,” and fondled and kissed her breasts. He “flipped [her] over onto [her] stomach” and started kissing her lower back and buttocks. Emily asked Eddington to stop because she “didn‘t want to and that wasn‘t the person [she] was.” He vaginally penetrated her with his fingers and tried to put his penis in her vagina but stopped when she resisted. He then forced her to perform oral sex on him several times. Although Emily told him “no” at least twenty times, he
¶4 At one point during the evening, Emily‘s roommate came to the bedroom door with Emily‘s dog. The roommate asked if everything was okay, and Emily responded in the affirmative; she explained that she did so because Eddington was standing right behind her and she was scared that Eddington would harm her or her roommates. In addition, one of Emily‘s roommates sent her a text message early in the morning asking if Eddington was still in Emily‘s bedroom and if everything was okay. According to Emily, Eddington forced her to unlock her phone so he could read the messages and told Emily to respond “that everything was fine and [she] made him sleep on the floor.” Emily also left her bedroom at some point during the night to use the bathroom. When Emily came out of the bathroom, Eddington was waiting for her right outside the door and the two went back into Emily‘s bedroom.
¶5 Eddington does not deny that Emily performed oral sex on him several times during the eight hours they spent together in Emily‘s bedroom or that he inserted his fingers into her vagina, but he maintains that the entire encounter was consensual. He also admits that he “made advancements toward intercourse” but claims that he stopped when Emily objected.
¶6 The next morning after Eddington left the apartment, Emily told her roommate “that things went well” and that “she might be seeing him again.” However, later that day, Emily showed the roommate her torn jeans and told her more about what had happened the night before. Emily reported the alleged assault to the police, who then had Emily place a pretextual phone call to Eddington. Eddington was arrested and interviewed by police. During the recorded phone call and interview, Eddington maintained that all the sexual activity with Emily was consensual. He shared certain details about Emily with the police detective
¶7 Prior to trial, the State filed a brief motion in limine to exclude any evidence of Emily‘s prior sexual activity under rule 412 of the Utah Rules of Evidence.3 See generally
¶8 At trial, however, several incidents occurred that Eddington‘s counsel (Counsel) argued opened the door to the admission of certain evidence regarding Emily‘s sexual history. First, during his opening statement, the prosecutor told the jury that Eddington “took [Emily‘s] virtue.” After the opening statements, outside the presence of the jury, Counsel argued that because the prosecutor‘s remark left the jury with the impression that Eddington took Emily‘s virginity, which was not accurate, the State had opened the door to allow the admission of evidence regarding Emily‘s sexual history. The court rejected Eddington‘s
¶9 Later, when the prosecutor asked Emily why she did not want to watch the movie in her bedroom, she responded, “Because it was a first date and I barely knew him. . . . And I‘m not the kind of girl that invite[s] guys into my bedroom.” A few minutes later, in response to a question from the prosecutor about what she was saying during the attack, Emily stated, “[I told Eddington] I didn‘t want to and that that wasn‘t the person I was. I asked him to stop.” Emily also testified, “I kept asking him to stop because I didn‘t want that, that‘s not who I am,” when explaining why she told Eddington to stop kissing her breasts, back, and buttocks. Counsel again argued that these statements were “commenting on [Emily‘s] prior sexual behavior and opening the door and creating a false impression in the mind of the jury about what she does or doesn‘t do.” To remedy this asserted misimpression, Counsel wanted to ask Emily two follow-up questions: (1) “Isn‘t it true that you have invited guys into your bedroom and had sexual activity on prior occasions?” and (2) “Isn‘t it true that you have had sexual activity on prior occasions?” However, the court did not permit Counsel to ask these questions, determining that Emily‘s statements during her testimony did not open the door to the admission of any evidence of her sexual past.
¶10 As part of its case, the State submitted to the jury the recordings and transcripts of Eddington‘s phone call with Emily and his interview with police. The police interview was redacted to comply with the court‘s pre-trial rule 412 ruling to exclude “portions that made reference to prior sexual activity.” Specifically, the version given to and heard by the jury omitted statements Eddington made to the detective that, during the evening in question, he and Emily had talked about their past dating experiences and that Emily had told Eddington that she had prior sexual experience, including experience performing oral sex.
¶12 Throughout his interview with police, Eddington maintained that all the activity between him and Emily was consensual. He did admit to the detective, however, that he “was a little aggressive,” that he ripped Emily‘s pants and bra, that he threw Emily on the bed when they went to the bedroom, and that though Emily said “no” several times and he pulled back, he thought “she was just kind of being like oh, no, like, like you should do it . . . like kind of like teasing [him], like egging [him] on.” Eddington‘s defense to the charges was that Emily, after the fact, regretted the consensual sexual activity the two had engaged in and was worried about the judgment of her roommates. Counsel argued in closing,
[Emily‘s] living with these roommates, the female roommates, all the roommates were there, all the roommates were aware that [Eddington] spent the night. . . . [I]t was unusual for anyone to have a sleep over, that‘s not something that was usually done, that wasn‘t something that was basically acceptable
behavior in this house. Her roommates and—and certainly, we do know that there was a lot, by—by both people‘s account, . . . there was a lot of sexual conduct that occurred that night. Her roommates, in this case, are not going to judge her, at least as soon as she says I‘m a victim, I‘m a victim in this case, . . . I did not agree to what happened, he spent the night against my will, all the sexual behavior that happened was against my will and by saying that I‘m a victim, then she doesn‘t have to deal with the idea that she crossed any of her own boundaries, the boundaries of her roommates.
¶13 At the close of the State‘s case, Eddington moved for a directed verdict on all the aggravated charges, arguing that the State had failed to prove the aggravation elements relating to threats of serious bodily injury or harm with a weapon: “No overt or verbal threat was actually made in this case. . . . [J]ust the fact that there was a weapon that was mentioned by [Eddington] that was out in the car, not accessible and never referenced as a threat is simply not enough to sustain aggravated charges, either with respect to the sexual assaults or the kidnapping.” The trial court denied the motion.
¶14 The parties submitted their requested jury instructions prior to trial. Eddington requested that the jury be instructed on the lesser included offense of sexual battery on each of the three counts of aggravated sexual assault, and the State requested that the jury be instructed on the lesser included offenses of forcible sodomy on Count 1, rape on Count 2, and object rape on Count 3. The court instructed the jury on each of these offenses. Eddington did not object to the State‘s request for instructions on the lesser included offenses and did not ask the court to direct a verdict with respect to any of the lesser included offenses. Ultimately, the jury acquitted Eddington of the aggravated sexual assault and aggravated kidnapping charges, as well as most of the lesser included offense charges. However, it found him guilty of two of
¶15 Eddington appealed his convictions and requested that this court remand the matter pursuant to rule 23B of the Utah Rules of Appellate Procedure to develop the record with respect to ineffective assistance of counsel. Eddington alleged that Counsel performed deficiently by failing to seek the admission of and confront Emily with certain evidence relating to her prior sexual activity and certain details of the sexual encounter between the two. Eddington asserted that this evidence (1) was not barred by rule 412 and (2) was relevant to the element of Eddington‘s mens rea as to consent. We granted the rule 23B motion.
¶16 Following remand and an evidentiary hearing, the district court determined that Counsel was aware of certain evidence in advance of trial. Specifically, the court found that Counsel knew that Emily told Eddington she had previously invited men into her bedroom; had previously engaged in sexual activity, including intercourse and oral sex; and was protected from pregnancy through her use of birth control. The district court also found that from Eddington‘s police interview, Counsel knew that during the alleged attack, according to Eddington, Emily had asked him to perform oral sex on her, coached him on a sexual position, consoled him when he expressed religious guilt about what they had done, told him she had been told she was good at performing oral sex, and told him she had climaxed during their encounter.4 Emily confirmed most of this information at the
¶17 Counsel testified at the rule 23B hearing, and the district court recited some of her testimony in its findings. Counsel expressed regret about not seeking the admission of or using the evidence listed above to cross-examine Emily because she “felt like . . . it would have been a different outcome” if she could have questioned Emily about the details of the encounter. She explained that although she “focused on” only the “two pieces of evidence” to which she believed Emily‘s testimony opened the door—that she had previously invited men to her room and that she had previously engaged in sexual activity—“‘looking back now’ . . . ‘in hindsight,’ she should have and would have proffered the additional items of . . . evidence that she had at trial.” However, Counsel admitted that she had been focused on other things happening at trial and was not “thinking of all of the evidence that [she] had available.” Although she acknowledged
are additional redacted portions that were not included in the rule 23B transcript exhibit. Thus, it is unclear whether Counsel became aware of this evidence from the unredacted transcript or learned about it from Eddington.
ISSUES AND STANDARDS OF REVIEW
¶18 Eddington now appeals and presents three issues for our consideration. First, he asserts that the evidence admitted at trial was insufficient to support the jury‘s verdict convicting him of the lesser included offenses of sexual battery and object rape in light of the fact that the jury acquitted him of the aggravated charges and the other lesser included charges. We will uphold a jury verdict as long as “some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.” State v. Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (quotation simplified). However, “a defendant must raise the sufficiency of the evidence by proper motion or objection to preserve the issue for appeal.” State v. Prater, 2017 UT 13, ¶ 27, 392 P.3d 398 (quotation simplified). And “[w]hen a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.
¶19 Eddington next claims that the trial court erred in limiting Counsel‘s cross-examination of Emily by ruling that Emily‘s testimony had not opened the door to the admission of certain evidence regarding Emily‘s sexual history. “When reviewing a trial court‘s decision to limit cross-examination, we review the legal rule applied for correctness and the application of the rule to the facts of the case for an abuse of discretion.” State v. Vigil, 2013 UT App 167, ¶ 8, 306 P.3d 845 (quotation simplified). “If that review convinces us that an error has occurred, we must then determine whether, assuming that the damaging potential of the cross-examination had been fully realized, we are convinced that the error was harmless beyond a reasonable doubt.” State v. Marks, 2011 UT App 262, ¶ 11, 262 P.3d 13 (quotation simplified), superseded on other grounds by statute as stated in State v. Steffen, 2020 UT App 95, 468 P.3d 568.
¶20 Eddington lastly asserts that he received constitutionally ineffective assistance of counsel because, though much of the evidence elicited at the rule 23B hearing was known to Counsel prior to the trial and some of that evidence was introduced to the jury through Eddington‘s redacted police interview, Counsel did not seek to use any of that evidence to impeach Emily during cross-examination or to support Eddington‘s motion that Emily‘s testimony opened the door to allow Counsel to impeach her with evidence of her sexual past. “In ruling on an ineffective assistance claim following a rule 23B hearing, we defer to the trial court‘s findings of fact . . . .” State v. Arriaga, 2012 UT App 295, ¶ 11, 288 P.3d 588 (quotation simplified). But we “must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).
ANALYSIS
I. Sufficiency of the Evidence
¶21 Eddington argues that there was insufficient evidence for the jury to find him guilty of the lesser included offenses of object rape and sexual battery “in light of” the fact that it acquitted him of the aggravated sexual assault crimes and the other lesser included offenses. But Eddington did not properly preserve this issue for appellate review.
¶22 Eddington maintains that because the jury acquitted him of aggravated sexual assault, forcible sodomy, rape, and aggravated kidnapping, the State‘s non-consent evidence must have been insufficient to support his convictions on sexual battery
¶23 Eddington argues that “a rare procedural anomaly exists” because “[t]here seems to be no logical procedural means to properly ‘preserve’ a sufficiency of the evidence argument to a verdict of guilt upon lesser-included offenses, until after the verdict.” However, Eddington‘s argument presupposes that whether sufficient evidence supports conviction of a lesser included offense must be analyzed in conjunction with the jury‘s acquittal on the greater offense. But this is not the case. To accept Eddington‘s exceptional-circumstances argument here—that he
¶24 Here, the evidence required to prove lack of consent with respect to the lesser included offenses was the same or less than that needed to prove consent as to the greater offenses.7 Yet Eddington did not raise a directed-verdict motion with respect to consent on any of the charges—his motion was directed only to the aggravating factors that were an element of the aggravated charges. Indeed, a directed-verdict motion with respect to consent would have been futile, on this record, because the State introduced evidence that Emily did not consent to the sexual intercourse or digital penetration: Emily‘s testimony at trial that she told Eddington “no” at least twenty times during the encounter is clearly sufficient evidence “from which a reasonable jury” could find lack of consent “beyond a reasonable doubt.” See State v. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d 1168 (quotation simplified); see also State v. Hamilton, 2003 UT 22, ¶ 41, 70 P.3d 111
¶25 The fact that there is no procedural means to challenge the sufficiency of the evidence after the verdict is not problematic because a verdict does not change the posture of a sufficiency of the evidence claim—whether evidence is “capable of supporting a finding of guilt beyond a reasonable doubt,” Hamilton, 2003 UT 22, ¶ 41 (quotation simplified), is not an inquiry that changes “in light of” a jury‘s verdict. Moreover, that Counsel chose to pursue a defense strategy that included requesting that the jury be instructed on the lesser included offense of sexual battery does not appear to present a rare procedural anomaly that warrants an exception to the preservation requirement.8 Indeed, this strategy appears to be a reasonable one. See generally State v. Hull, 2017 UT
II. Cross-Examination and Opening the Door
¶26 Eddington next claims that the trial court exceeded its discretion in limiting his cross-examination of Emily, arguing that Emily and the prosecutor opened the door to the introduction of certain evidence—that would otherwise be inadmissible under
¶27 We see no problem—and the parties have not argued otherwise—with the trial court properly entering a pretrial order consistent with Utah‘s rape shield rule. See
¶28 We find the reasoning of other jurisdictions persuasive on this point. In State v. Williams, 487 N.E.2d 560 (Ohio 1986) (per curiam), the alleged victim “testified on direct examination . . . she did not have sex with men because she was ‘gay.‘” Id. at 560–61.10 In response, the defendant proffered testimony that “directly refute[d] this contention.” Id. at 563. The Ohio Supreme Court determined the proffered testimony advanced by the defendant was admissible—even within the context of the state‘s rape shield law—because it served the “important purpose” of “negat[ing] the implied establishment of [the consent] element of the crime
¶29 In Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992), a defendant was charged with “involuntary deviate sexual intercourse”11 committed against his fifteen-year-old stepdaughter. Id. at 697. The prosecution had introduced evidence that the complainant had told her boyfriend that she had experienced oral sex with an older man when she was under the age of sixteen, inferring that the experience was with only one man and that man was her stepfather. Id. at 698–99. But the complainant had also given prior sworn testimony in a separate proceeding that an older man—who was a friend of her stepfather—had induced her to have oral sex by offering her cocaine when she was under sixteen. Id. The defendant—who admitted to having engaged in sexual activity with the complainant but insisted that it occurred after she had turned sixteen—argued that the complainant‘s “prior sworn testimony concerning similar conduct,” id. at 697, was not barred by the rape
¶30 The Pennsylvania Supreme Court agreed with the defendant on appeal, noting that the rape shield law “does not act to prohibit relevant evidence which may exculpate a defendant of the crime with which he is charged.” Id. at 699. Significantly, the court observed that the prosecution “exploited” and “took unfair advantage of the exclusion of the prior sworn testimony” to “promot[e] the inference that there was only one older man“—the stepfather. Id. at 701. The court observed,
The combined effect of this conduct by the Commonwealth was to raise the issue of the [complainant‘s] social and sexual relationships and use it to advance an inference that the [complainant] confided to [her boyfriend] that she had experienced oral intercourse with the [defendant] prior to her sixteenth birthday. Once the Commonwealth anchored an incident of oral intercourse with an older man prior to [the complainant‘s sixteenth birthday], it then became even more critical to permit [the defendant] to argue a contrary inference relating to that relationship.
The [rape shield] statute cannot be both shield and sword. Here a statute is so designed to protect the witness‘s interest in preventing prejudicial disclosure of the witness‘s past behavior. It cannot at the same time preclude a defendant from offering evidence which is so highly probative of the witness‘s credibility that such evidence is necessary
to allow/permit a jury to make a fair determination of the defendant‘s guilt or innocence. The statute must yield to a defendant‘s basic constitutional right.
¶31 And in State v. Cannon, 776 A.2d 736 (N.H. 2001), the defendant argued that the trial court erred in excluding testimony regarding a complainant‘s prior consensual sexual activity. Id. at 737. While the defendant acknowledged that such testimony was generally “inadmissible under the rape shield doctrine,” he argued that the complainant “opened the door to the admission of [the] testimony when she testified that the reason she did not want to have sex with the defendant was because she had a boyfriend.” Id. The defendant sought to call a witness who would testify that the complainant had consensual sex with another man, who was not her boyfriend, just a few weeks before and in circumstances very similar to the charged incident of sexual assault. Id. at 738.
¶32 The New Hampshire Supreme Court agreed with the defendant, id. at 737, noting that “[w]hile normally evidence of the complainant‘s sexual history would be excluded pursuant to the rape shield doctrine, the prosecution opened the door to the admissibility of [the] testimony when it asked the complainant why she pushed the defendant‘s hands away and told him ‘No.‘” Id. at 738. It further explained,
She had no obligation to explain her reasoning for not consenting; however, once she did so at the request of the State, the defendant was entitled to present evidence to refute her assertion. The central issue in this case was whether the complainant consented to having sexual intercourse with the defendant. The complainant‘s testimony [that she did not consent because she had a boyfriend] served only to bolster her credibility regarding the issue of
consent. In such a circumstance, the defendant is entitled to rebut this assertion because the probative value of the proffered evidence would outweigh its prejudicial effect on the victim.
Id. at 739 (quotation simplified). In other words, the complainant‘s prior sexual activity was not relevant to whether she consented to later sexual activity until the prosecution made it relevant by asking her why she refused the defendant‘s sexual advances. Thus, it was not the prior sexual activity, standing alone, that was relevant. Rather, it was when the prosecution used that prior sexual activity to provide a basis for asserting a lack of consent on a later occasion that it became relevant. Once the prosecution opened that door, the defendant had the right to rebut the assertion with testimony to the contrary.
¶33 Here, during his opening statement, the prosecutor stated that Eddington “held [Emily] prisoner and then he took whatever he wanted: he took her body, he took her virtue, he took her will.” Then, during her direct testimony, in response to the State‘s question about why she wanted to watch the movie in the living room, Emily testified that she was “not the kind of girl that invites guys into [her] bedroom.” A few minutes later, in response to a question about what she said during the attack, Emily responded that she told Eddington that she did not want him to fondle and kiss her breasts because “that wasn‘t the person [she] was” and that she asked Eddington to stop kissing her lower back and buttocks because she “didn‘t want that, that‘s not who [she is].”
¶34 Prior to cross-examining Emily—and to correct what Counsel alleged was a false impression about Emily‘s chastity and to impeach Emily‘s claim of non-consent—Counsel argued that Emily‘s statements about the kind of person she was opened the door to admission of evidence of specific instances of her prior sexual behavior. Specifically, Counsel requested that she be allowed to ask Emily whether she had invited men to her
bedroom on previous occasions and whether she had previously engaged in sexual intercourse. Counsel explained that Emily had told Eddington “about two long-term boyfriends [with whom] she had engaged in both oral sex and intercourse.” The trial court refused to allow Counsel to ask Emily questions about inviting men to her bedroom or having sexual relations on other occasions because that information in the context of rule 412 was “insufficiently probative to outweigh the highly prejudicial effect of its introduction at trial.”
¶35 On appeal, Eddington argues that the trial court‘s application of rule 412 to prohibit him from questioning Emily about inviting men to her bedroom on prior occasions and about her sexual past violated his constitutional rights. The
¶36 Rule 412 is an example of Utah‘s recognition that the defendant‘s right to present evidence may be limited to accommodate the interests of an alleged victim of sexual assault. The rule generally prohibits the introduction, in certain criminal cases, of any evidence of a victim‘s past sexual behavior or sexual predisposition. See
¶37 But the rule itself recognizes exceptions, and evidence of a victim‘s prior sexual history is admissible under the rule if its “exclusion would violate the defendant‘s constitutional rights” to a fair trial.
¶38 Here, the trial court excluded the evidence of Emily‘s sexual history because it determined that the probative value of that evidence did not outweigh the possible harm to Emily or the fact-finding process. Specifically, the court found that such evidence was “ordinarily insufficiently probative to outweigh the highly prejudicial effect of its introduction at trial.” But after the prosecutor‘s statement regarding virtue and Emily‘s multiple statements concerning “who” she is in a sexual context, the situation at trial was no longer ordinary. The proverbial door had been opened. We are especially troubled by the State‘s representation in its opening statement that Eddington “took [Emily‘s] virtue.”13 We determine that, in this circumstance, the
¶39 As in many sexual assault cases, there were only two witnesses to the events that evening. Given that Emily was the main witness at trial and the disputed issue was consent, her credibility was critical to the State‘s case. Eddington argues that Emily‘s testimony that she was not the type of person who invited men into her bedroom or let men fondle her breasts or kiss her lower back and buttocks left the jury with a false impression. We agree. Counsel‘s proffered questions were not aimed at attacking Emily‘s morality or offered to imply that a sexual assault victim
¶40 Though we determine the trial court erred in limiting cross-examination, this does not end our inquiry, as certain constitutional errors can be “harmless” in terms of their effect on the fact-finding process at trial. See Chapman v. California, 386 U.S. 18, 24 (1967)
¶41 Here, Emily was, of course, the key prosecution witness to the facts supporting the charged crimes. “In this sense, her testimony was of ultimate importance.” See Vigil, 2013 UT App 167, ¶ 14. The State argues that any error in precluding cross-examination on Emily‘s sexual past was harmless because she gave reasonable explanations for those statements at the remand hearing and those explanations would have rehabilitated her testimony in the eyes of the jury. That is, as stated by the State, had she been asked at trial, Emily would have clarified that,
¶42 Ultimately, there was absolutely no reason that Emily‘s past sexual behavior was relevant to the case until the State made it relevant. Emily was under no obligation to reveal anything about her sexual experiences with others, and both the State and Eddington were precluded by the court‘s pre-trial order from introducing any of that information at trial. But the prosecutor‘s statements and Emily‘s responses to questions on direct examination opened the door to Eddington having the right to rebut the inference that Emily was not the kind of a person who would engage in sexual behavior. By asserting that Eddington
III. Ineffective Assistance of Counsel
¶43 Eddington next asserts that Counsel rendered constitutionally ineffective assistance by failing to seek the admission of and to question Emily about certain evidence known to Counsel at the time of trial that was partly admitted through Eddington‘s redacted police interview and phone call and further adduced at the rule 23B hearing. To prevail on an ineffective assistance of counsel claim, Eddington must show both that Counsel‘s performance was deficient, in that it “fell below an objective standard of reasonableness,” and that this deficient performance “prejudiced the defense” such that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. “A defendant must satisfy both parts of this test in order to successfully establish ineffective assistance.” State v. Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150.
¶45 Eddington first argues that Counsel performed deficiently by failing to cross-examine Emily about certain claims that Eddington made during his police interview and recorded phone call: that during their encounter, Emily coached Eddington on how to rub his penis between her breasts and ejaculate; that Emily told Eddington that she was climaxing during their encounter; and that Emily consoled Eddington when he expressed religious guilt about what they had done and told him it was “not a big deal.” Eddington also argues that Counsel should have sought to cross-examine Emily about other similar evidence known to Counsel at the time of trial and that was further elicited at the rule 23B hearing to impeach Emily: that during their encounter, Emily asked Eddington to perform oral sex on her, and when he did not,
¶46 We agree with Eddington that Counsel performed deficiently in failing to question Emily about this evidence. Unlike direct questioning about Emily‘s sexual past, this evidence did not fall within the prohibitions of rule 412 because it was not evidence of “other sexual behavior” or evidence of Emily‘s “sexual predisposition.” See
¶48 Because the evidence was highly probative with respect to the issues of consent and Eddington‘s intent, and especially in light of the trial court‘s erroneous decision not to allow cross-examination about Emily‘s sexual history after the State opened the door, it was unreasonable for Counsel not to highlight the evidence or seek to question Emily during cross-examination to undercut her credibility. Moreover, we consider it reasonably probable that having heard Emily‘s corroboration of many of the details of Eddington‘s account, the jury would have had a
CONCLUSION
¶49 We decline to review Eddington‘s challenge to the sufficiency of the evidence because it is unpreserved and no preservation exception applies. We further conclude that the trial court exceeded its discretion in limiting Eddington‘s cross-examination of the alleged victim. Additionally, Counsel rendered ineffective assistance by not seeking to cross-examine Emily about some of the details of the encounter. Accordingly, we vacate Eddington‘s convictions and remand for a new trial.
Notes
State v. Marks, 2011 UT App 262, ¶ 45, 262 P.3d 13, superseded on other grounds by statute as stated in State v. Steffen, 2020 UT App 95, 468 P.3d 568.[T]he footnote merely reflects the supreme court‘s agreement with the advisory committee notes that rule 412 presumptively excludes evidence of the complainant‘s prior sexual activity, even if such evidence is offered for impeachment purposes. . . . There is nothing in the supreme court‘s decision in Boyd, however, that suggests evidence offered for impeachment purposes must be categorically excluded if to do so would violate the defendant‘s constitutional rights.