STATE OF UTAH, Petitioner v. ROBERT ALONZO PERAZA, Respondent.
No. 20180487
Supreme Court of the State of Utah
July 15, 2020
2020 UT 48
Heard April 18, 2019. On Certiorari to the Utah Court of Appeals. Fourth District, Provo. The Honorable Darold J. McDade. No. 131402387.
Attorneys:
Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen., Salt Lake City, Randy M. Kennard II, Provo, for petitioner
Douglas J. Thompson, Provo, for respondent
JUSTICE PETERSEN authored the
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Robert Alonzo Peraza was convicted of four counts of sodomy on a child. The court of appeals vacated those convictions, concluding that the trial court committed two reversible errors: allowing the State’s expert witness to testify in violation of
¶2 The State petitioned for certiorari, arguing, among other things, that the court of appeals erred by conflating the standards and remedies under
¶3 We conclude that the court of appeals did conflate the requirements and remedies of the Expert Notice Statute and
¶4 We therefore reverse the court of appeals’ holding that the trial court erroneously admitted the expert witness testimony. And we remand to the court of appeals to apply the correct prejudice standard in relation to the trial court’s denial of Peraza’s motion to continue and to address any remaining claims.
BACKGROUND
Sexual Abuse Allegations
¶5 A nine-year-old child told her mother and grandfather that Peraza, the child’s stepfather, had been sexually abusing her. The grandfather immediately contacted the police, who began investigating the allegations. As part of the investigation, the child was interviewed at the Children’s Justice Center (CJC). She disclosed that Peraza began forcing her to perform oral sex on him when she was six years old and that the abuse had
¶6 Peraza was subsequently arrested and interviewed by the police. He initially denied sexually abusing the child, stating that he believed the child’s mother and grandfather had likely coached her into making the allegations. Eventually, however, Peraza acknowledged that there was at least one occasion where he had been drunk and could have mistaken the child for his wife and unwittingly forced her to perform oral sex on him. He then admitted it could have happened “a few more times.”
¶7 In the period after Peraza’s arrest, the child recanted the allegations to her mother and Peraza’s private investigator. But the child later reaffirmed the earlier descriptions of abuse and added additional allegations against Peraza and another perpetrator. She explained that she had lied when she recanted the abuse allegations because she did not want her family to be separated.
¶8 The State ultimately charged Peraza with four counts of sodomy on a child1 and one count of aggravated sexual abuse of a child, all first-degree felonies. He pleaded not guilty to the charges and requested a jury trial.
Pretrial Proceedings
¶9 Before trial, the State filed a notice of its intent to call the child’s therapist from California as an expert witness to testify “generally about the psychological symptoms, reactions, and behaviors common in children that report having been abused sexually, and that her observations of [the child’s] symptoms and behavior are consistent with those of other children who report sexual abuse.” The State’s notice indicated that the child’s therapist “may also provide corroborative evidence to rebut any defense claims of fabrication, coaching, etc.”
¶10 Peraza filed a motion to exclude the child’s therapist from testifying. Specifically, Peraza argued that the description of the therapist’s proposed testimony was vague and failed to provide the defense with adequate information to meet that testimony. He also argued that any testimony regarding “stereotypical” reactions of children who report sexual abuse should be ruled inadmissible because it is unreliable and prejudicial under
¶11 But before the trial court ruled on Peraza’s motion to exclude, the State withdrew its notice for the child’s therapist. Peraza then served the child’s therapist with a Utah subpoena, but she stopped communicating with the defense when asked to appear for trial. The State had intended to question the child’s therapist as a defense witness. But as trial neared and Peraza had not filed a notice of expert testimony, the State filed a notice of its intent to call a different expert witness to rebut Peraza’s likely defense that the child’s testimony should be disbelieved because of her prior recantation and inconsistent statements.
¶12 The State filed this notice thirty-two days before trial. The notice explained that the State planned to call a forensic interviewer from the CJC to testify to “matters of specialized knowledge and experience.” The State’s notice indicated that the expert witness would testify to, “[t]he methodology and science related to forensic interviewing of suspected child sex abuse victims; science
¶13 Twelve days before trial, the trial court held a hearing to dispose of a number of outstanding matters. Relevant here, Peraza orally moved for the first time to exclude the forensic interviewer from testifying as an expert witness. Although he had not submitted a written motion for this expert witness, Peraza asked the trial court to apply the motion that he had previously filed regarding the child’s therapist. The State then provided the trial court with a hard copy of Peraza’s previous motion to exclude.
¶14 During the pretrial hearing, Peraza challenged the adequacy of the State’s notice for the forensic interviewer, stating that he “[did not] really know exactly what this expert would be testifying to” and that he did not have access to the listed articles because they required a subscription. He also argued that, assuming the expert witness planned to testify about any “statistical basis” for the nature of the child’s disclosures and recantations, such testimony did not meet the threshold requirements of
¶15 In response, the State argued that it intended to call the expert witness only to rebut any argument from Peraza that the child was not credible because her testimony had changed over time and she had recanted the allegations on at least one occasion. It then clarified that the expert witness would testify that children might not “make a full disclosure initially, and that it’s a process,” but that she would not opine as to whether the child here was being truthful or not.
¶16 In addressing the oral motion, the trial court noted that it “[did not] know what’s going to happen, because [it did not] have testimony” and “[did not] know what people are going to say until it actually gets done.” In addition, the trial court acknowledged that it was unsure “whether or not [the expert witness was] going to be needed.”3 Nevertheless, the court determined that the State’s witness “would meet the criteria for being an expert” under
¶17 Peraza then argued that he still did not “have a thorough enough written explanation of the expert’s proposed testimony, sufficient to give [him] adequate notice to prepare and meet that testimony, especially since [he did not] have . . . those studies.” The State responded that the expert witness was “available . . . to consult with [Peraza] . . . [to] answer any questions” and that it was likewise unsure what testimony would be necessary from the expert until it heard the defense’s evidence.
¶18 The trial court acknowledged that there was not “a motion . . . pending with regard to this particular expert,” but that it was “going to deny [the] motion at this point in time.” It stated that “[f]or purposes of today, . . . [it was] going to deny [Peraza’s] motion.” But the court noted that it would consider objections and “maybe this lady doesn’t come in.” The court then restated that “looking at skill, experience, [and] education,” the witness met the
¶19 Peraza responded that he understood that the trial court had ruled on his objection and indicated that he would submit a written motion for this specific witness.4 The court agreed that “[it would] like to have something there, and especially for [Peraza’s] purposes, if something comes of it, [he would] need that for the next level.”
¶20 Peraza then asked, “In light of the [court] . . . reserving [on] the expert testifying or not,” whether he could “get an electronic copy of all the reports that [the expert
¶21 Later that day, defense counsel requested an emergency telephone conference to ask the trial court for another continuance. During that conference, counsel stated that he had begun preparing to meet the expected testimony of the forensic interviewer after the trial court ruled that she was qualified to testify as an expert witness for the State. In doing so, he consulted with the Salt Lake Legal Defender’s director of mental health and social work. During this discussion, counsel described for the director some of the techniques used by the child’s therapist, including having the child make and kill effigy dolls of Peraza and another alleged perpetrator that the child had disclosed during her therapy sessions. Counsel stated that, as a result of his discussion with the director, he learned for the first time that this therapy technique “could give grounds for the recantation of the recantation, and also . . . might have led to the allegations becoming much more violent and much more pronounced as the years have gone on.” Arguing that the “therapy may have led to possible contamination of the [child’s] testimony,” counsel requested a continuance to acquire his own expert witness to review the child’s therapy records and determine whether they may “give a foundation for the defense.” The State responded that while it was “unhappy with . . . continuing again,” it “underst[ood] the basis of what [Peraza was] asking for.”
¶22 The trial court denied the motion for a continuance, stating that it believed Peraza could have discovered this information previously. In addition, the court reasoned that the trial had already been continued three times and that it had “to draw the line somewhere.” It concluded by acknowledging that “this might be something that could be used later” but indicated that the trial should take place as scheduled because they had an obligation to the alleged victim. The case proceeded to trial twelve days later.
Trial
¶23 At trial, the State called the forensic interviewer to testify as a rebuttal witness. Peraza objected, arguing that she was not a proper rebuttal witness because evidence that the child had recanted the sexual abuse allegations was presented in the State’s case-in-chief, not the defense’s case. The trial court overruled the objection and allowed the State to continue laying a foundation for the expert witness. The State asked the expert witness about her education, experience, specialized training, and the scientific research supporting forensic interviewing techniques for children. The expert testified that she had read research articles that were peer reviewed to ensure that they are “accurate, and . . . represent[ed] the field.”
¶24 The State then elicited testimony from the witness about the research she had read relating to recantations and partial, gradual, and delayed disclosures of allegations of child sex abuse. Other than counsel’s initial objection that the expert was not a proper rebuttal witness, counsel did not object to any of the expert’s testimony.
¶25 Following a three-day trial, the jury convicted Peraza of four counts of sodomy on a child and sentenced him to concurrent sentences of twenty-five years to life on each count.5 Peraza appealed his convictions to the Utah Court of Appeals.
Court of Appeals’ Opinion
¶26 On appeal, Peraza made a number of arguments, including that the trial court abused its discretion when it allowed the expert witness to testify because the State
¶27 The court of appeals concluded that the trial court erred in admitting the expert’s testimony. Id. ¶¶ 2, 30, 32, 37, 49. According to that court, because the State’s notice did not comply with the Expert Notice Statute, the trial court was deprived of “the information necessary to rule on the admissibility of Expert’s testimony under rule 702.” Id. ¶ 2; see also id. ¶¶ 28, 31, 37, 49. It concluded that this error was prejudicial. Id. ¶ 37.
¶28 The court of appeals also concluded that the trial court abused its discretion in denying Peraza’s request for a continuance. Id. ¶¶ 2, 38, 48. Its analysis relied on the Expert Notice Statute, id. ¶ 39, which states that if the party seeking to admit expert testimony “fails to substantially comply with the requirements of this section, the opposing party shall, if necessary to prevent substantial prejudice, be entitled to a continuance of the trial or hearing sufficient to allow preparation to meet the testimony,”
¶29 Based on these two errors, the court of appeals vacated Peraza’s convictions and remanded the case to the trial court for a new trial. See id. ¶¶ 2, 49.
¶30 The State petitioned for certiorari, which we granted. We exercise jurisdiction under
STANDARD OF REVIEW
¶31 On certiorari, we review the court of appeals’ decision for correctness. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d 1176.
ANALYSIS
¶32 The State asks us to reverse the court of appeals’ decision vacating Peraza’s convictions. Specifically, we granted certiorari to consider two issues: (1) whether the court of appeals erred in vacating Peraza’s convictions based on its construction and application of
I. EXPERT WITNESS TESTIMONY
¶33 The State first contends that, in determining that the trial court abused its discretion when it allowed the expert witness to testify, the court of appeals erroneously conflated the requirements of
¶34 The rules of evidence and the Expert Notice Statute have distinct purposes, timing requirements, and remedies. These differences are essential to understanding what a proponent of expert witness testimony in a felony criminal case must do at different stages of the litigation. Accordingly, we begin
¶35 When a party seeks to call an expert to testify at trial in a felony criminal case, they must provide notice to the other party in accordance with the Expert Notice Statute. See
¶36 The Expert Notice Statute prescribes two remedies if the proponent of the testimony does not comply with its requirements. First, if the proponent “fails to substantially comply with [the Expert Notice Statute’s] requirements . . . , the opposing party shall, if necessary to prevent substantial prejudice, be entitled to a continuance of the trial or hearing sufficient to allow preparation to meet the testimony.”
¶37 The Expert Notice Statute’s focus is to enable a party to prepare before trial for expert testimony offered by an opponent. See
¶38 In contrast,
¶39 The Expert Notice Statute provides for the exclusion of expert testimony only when a party deliberately violates the Statute.
¶40 Here, the issue before the court of appeals was whether the testimony of the expert witness was admissible under
¶41 But we conclude the court of appeals conflated the distinct requirements and remedies of the Expert Notice Statute and
¶42 Second, in several paragraphs throughout its decision, the court of appeals specifically mentioned the Expert Notice Statute when it concluded that the trial court abused its discretion in admitting the expert’s testimony. See Peraza, 2018 UT App 68, ¶¶ 2, 28, 30–31, 37, 49. For example, it stated that “[t]he State’s notice did not comply with section 77-17-13, depriving the court of the information necessary to rule on the admissibility of Expert’s testimony under rule 702.” Id. ¶ 2; see also id. ¶ 37 (“[T]he district court exceeded its discretion in admitting Expert’s testimony at trial because the State failed to comply with Utah Code section 77-17-13 in that it did not provide an expert report or detailed information with respect to Expert’s testimony or the scientific basis on which she would rely. Without this information the requirements under rule 702 were not met . . . .”).
¶43 This commingling of the requirements and remedies of the Expert Notice Statute and
¶45 At trial, the State called the forensic interviewer to testify during its rebuttal. It laid a foundation regarding her education, experience, and specialized training, which Peraza has never challenged. Relevant here, the State also asked the forensic interviewer whether the list of articles attached to her curriculum vitae contained “areas [about which she] felt [her] training and experience allowed [her] to testify as an expert.” Specifically, the State asked whether she was qualified to testify to “[p]artial gradual disclosure of sexual abuse, age and timing of disclosure, reasons children delay disclosure, reasons children disclose, reluctant disclosures and avoidant children in forensic interviews, memory of traumatic events, difficulties with identifying dates of abuse, among other things” as well as “sexual behavior in abused and non-abused children, process of victimization, rapport, false allegations, recantations, fantasy, [and] bizarre disclosures.” The expert witness confirmed that she had read research articles on those topics.
¶46 The State followed up, asking, “Are those things . . . that you believe were generally accepted . . . within your field as being sources that were reliable sources of research?” The witness confirmed that the articles were published in peer-reviewed journals, which she explained meant that the peers within the author’s academic community “review [the article] . . . to make sure that it’s accurate, and that it’s something that they feel like that they agree with, and that it represents the field.” Only after laying this foundation did the State proceed to elicit expert opinion testimony from the witness. Notably, Peraza did not object under
¶47 The court of appeals appears not to have considered this trial testimony in its 702 analysis. It looked only to the information in the State’s pretrial notice. And it concluded that the notice did not contain enough information to meet the threshold requirements of
¶48 Peraza argues that this was not a conflation of the Expert Notice Statute and
¶49 But the factual premise of Peraza’s argument is incorrect. While the trial court did conclude at the pretrial hearing that the expert was qualified under
¶50 At trial, the witness did not offer an opinion until after the State had elicited answers to preliminary questions sufficient to satisfy
II. MOTION FOR A CONTINUANCE
¶51 The court of appeals held that the trial court erred when it denied Peraza’s motion for a continuance. The court of appeals premised its analysis on a conclusion that Peraza had requested the continuance pursuant to the Expert Notice Statute. Based on that conclusion, it shifted the burden to the State to prove that Peraza was not prejudiced by the erroneous denial. The State does not contest the court of appeals’ determination that the denial of the continuance was error, but it argues that the court of appeals erred in requiring the State to disprove prejudice. We agree.
¶52 The court of appeals’ analysis on this point was based on the premise that the State violated the Expert Notice Statute, and that Peraza requested the continuance pursuant to that statute. As discussed above, the court of appeals concluded in its assessment of Peraza’s rule 702 argument that the State violated the Expert Notice Statute. State v. Peraza, 2018 UT App 68, ¶¶ 31, 37, 49, 427 P.3d 276; see supra ¶¶ 40–50. And in analyzing Peraza’s argument that the trial court erred in denying his motion for a continuance, the court of appeals presumed that Peraza requested the continuance as a result of the State’s violation. Id. ¶ 45.
¶53 After determining that the trial court’s denial of Peraza’s request was erroneous, the court of appeals required the State to prove that Peraza had not been prejudiced by the error. Id. ¶¶ 44–48. In cases involving a violation of the Expert Notice Statute, the court of appeals has shifted the burden to the State to prove that the defendant was not prejudiced. The court of appeals’ cases reference our rationale in State v. Knight. 734 P.2d 913, 921 (Utah 1987). In Knight, the prosecution violated its discovery duty by failing to turn over certain inculpatory evidence. See id. at 914–16. We recognized that “when . . . the error consists of the prosecution’s failure to provide a defendant with inculpatory evidence, the record does not provide much assistance in discovering the nature or magnitude of the resulting prejudice to the defense.” Id. at 920. Accordingly, we held that “[b]ecause of the difficulties posed by the record’s silence in cases involving a wrongful failure to disclose inculpatory evidence, it seems appropriate in such instances to place the burden on the State to persuade a court that the error did not unfairly prejudice the defense.” Id. at 921. The defendant must only “make a credible argument that the prosecutor’s errors have impaired the defense.” Id. Then “it is up to the State to persuade the court that there is no reasonable likelihood that absent the error, the outcome of the trial would have been more favorable to the defendant.” Id.
¶54 The court of appeals has extended this holding to cases in which the state has violated the Expert Notice Statute. See State v. Arellano, 964 P.2d 1167, 1171 (Utah Ct. App. 1998); see also State v. Tolano, 2001 UT App 37, ¶¶ 14–15, 19 P.3d 400. And it applied this precedent here to require the State to prove Peraza was not prejudiced by the trial court’s erroneous denial of his request for a continuance. Peraza, 2018 UT App 68, ¶¶ 44–48. We conclude this was error for two reasons.
¶55 First, Peraza acknowledges that he has not argued on appeal that his request for a continuance was based on the Expert Notice Statute. Accordingly, Peraza has waived any such argument.
¶56 Second, we find the position Peraza has taken on appeal to be consistent with the trial record. The record reflects that Peraza did not request the continuance under the Expert Notice Statute. Rather, he asked for a continuance to secure his own expert witness to discuss the potential impact of the child’s therapy on her statements and testimony. During the emergency telephone conference,
¶57 Accordingly, the court of appeals erred when it applied its precedent involving the Expert Notice Statute to assess whether Peraza was prejudiced by the denial of the continuance.9 The Expert Notice Statute was not in play.
¶58 In general, when a party unsuccessfully requests a continuance to procure a witness, based not on a particular statute or rule but pursuant to the court’s inherent authority to manage the case, the movant must prove prejudice on appeal. See Mackin v. State, 2016 UT 47, ¶¶ 33–34, 37, 387 P.3d 986. We will not reverse the trial court’s decision to grant or deny a continuance “absent a clear abuse of that discretion.” Id. ¶ 33 (citation omitted). A trial court “abuses its discretion when it denies a continuance and the resulting prejudice affects the substantial rights of the defendant, such that a review of the record persuades the court that without the error there was a reasonable likelihood of a more favorable result for the defendant.” Id. (citation omitted) (internal quotation marks omitted).
¶59 When a defendant moves for a continuance under the common law, it is the defendant’s burden to prove that a denial of the motion would be prejudicial. See id. Here, it was Peraza’s burden to prove prejudice.
¶60 Accordingly, we reverse the court of appeals’ ruling and remand for that court to consider under the correct legal standard whether the trial court’s erroneous denial prejudiced Peraza.10
III. INEFFECTIVE ASSISTANCE OF COUNSEL
¶61 Peraza also argues that his counsel was ineffective. Recognizing that the record is insufficient to make this determination, he asks us to remand to the trial court under
¶62 We conclude that the court of appeals’ rule 702 analysis was erroneous. The State’s expert testimony was admissible. Further, the court of appeals erred in requiring the State to prove that Peraza was not prejudiced by the trial court’s denial of his motion for a continuance.
¶63 We reverse the court of appeals’ decision with regard to the expert witness. And we remand to the court of appeals to determine whether Peraza established that he was prejudiced by the trial court’s denial of his motion for a continuance and address any other remaining claims.
Notes
Here, Peraza made an oral motion to exclude the forensic interviewer at the pretrial hearing. Based on the information before it, the trial court concluded the expert was qualified under