STATE OF UTAH, Appellee, v. MARK JESS ROBERTS, Appellant.
No. 20150247-CA
THE UTAH COURT OF APPEALS
Filed January 11, 2018
2018 UT App 9
Third District Court, Salt Lake Department; The Honorable Vernice S. Trease; The Honorable Deno G. Himonas; No. 101908693. Nathalie S. Skibine, Attorney for Appellant. Sean D. Reyes and William M. Hains, Attorneys for Appellee. JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
¶1 Mark Jess Roberts appeals his convictions for various crimes involving sexual abuse of a child (Victim). He argues that the trial court erred by (1) admitting into evidence a video-taped interview of Victim by the Children’s Justice Center (the CJC interview), (2) failing to strike testimony of a witness, and (3) excluding evidence regarding another potential perpetrator of Victim’s sexual abuse. We affirm.
BACKGROUND
¶2 Between the ages of four and five, Victim lived with her mother and Roberts, her mother’s boyfriend. Though she knew that Roberts was not her biological father, she referred to him as “dad.”
¶3 Victim was taken to live with her grandmother (Grandmother) when she was five years old and eventually disclosed to Grandmother, her cousin, and a therapist that Roberts had sexually abused her. In May 2010, Grandmother took Victim to the Children’s Justice Center where a caseworker interviewed Victim about the abuse. The CJC interview was videotaped, and during the interview, Victim disclosed details of several separate incidents of abuse.
¶4 The State charged Roberts with three counts of first degree felony rape of a child, two counts of first degree felony sodomy on a child, one count of first degree felony aggravated sexual abuse of a child, and one count of class A misdemeanor lewdness involving a child.1
¶5 Before and during trial, the court made several evidentiary rulings relevant to this appeal. First, before trial, the State moved to admit the video of the CJC interview. Roberts objected under
¶6 At trial, Victim’s therapist, a social worker (Social Worker), testified. She provided specific details about Victim and their therapy sessions, and she also compared Victim’s behavior to other child victims of sexual abuse. Approximately thirty minutes into the State’s direct examination Roberts objected, arguing that the State had not notified him that Social Worker would testify as an expert and moving to strike Social Worker’s testimony in its entirety. The trial court ruled that Roberts’s motion was untimely and that he had therefore waived his objection.
¶7 Finally, Roberts attempted to elicit testimony from Grandmother that her ex-husband, Victim’s grandfather (Grandfather), was a registered sex offender and had previously been convicted of child sexual abuse. The State objected, arguing under
¶8 The jury convicted Roberts on all counts. Roberts appeals.
ISSUES
¶9 Roberts raises three main issues on appeal. First, he argues that the trial court erred in admitting the CJC interview. Second, he argues that the court abused its discretion when it did not strike Social Worker’s testimony. Finally, he argues that the court abused its discretion by not admitting evidence of Grandfather’s prior convictions.
ANALYSIS
I. The CJC Interview’s Admissibility
¶10 Roberts argues that the trial court erred in admitting the CJC interview into evidence. He contends that Victim’s recorded statement was not sufficiently reliable as required by
¶11
¶12 Reliability in this context is a fact-intensive inquiry, requiring the trial court to undertake “an in-depth evaluation of the proposed testimony” and then enter findings and conclusions to explain its decision to admit or exclude the testimony. See State v. Snyder, 932 P.2d 120, 133 (Utah Ct. App. 1997) (citation and internal quotation marks omitted). As a result, “[i]n reviewing the trial court’s decision to admit, we defer to the trial court’s fact-finding role by viewing the facts in the light most favorable to the trial court’s decision to admit and by reversing its factual findings only if they are against the clear weight of the evidence.” See State v. Ramirez, 817 P.2d 774, 782 (Utah 1991); see also
¶13 In making its reliability determination, the trial court considered numerous factors and made extensive findings. Among other things, the court found that the interview showed Victim to be “a six-year-old that was articulate, aware of the circumstances under which she was being interview[ed], and . . .
¶14 Despite the court’s findings, Roberts asserts that the court’s reliability determination must be reversed for several reasons. He challenges the interviewing technique and the court’s assessment of it. He also challenges the court’s determinations about the length of time that elapsed between the abuse and the interview and the court’s assessment of allegedly incredible statements made by Victim. We address each set of challenges below.
A. Interviewing Technique
¶15 Roberts asserts that the forensic interviewing technique was flawed in a way that rendered the CJC interview unreliable. In particular, he contends that the interviewer used leading questions; that she did not elicit a promise from Victim to tell the truth and did not establish what truth was; that the interviewer’s reliance on drawings was improper; and that the interviewer failed to ask follow-up questions about certain key issues, such as conversations Victim had with Grandmother and Victim’s cousin about the abuse. He also contends that, regardless of the quality of Victim’s responses, the “forensic interviewing tactics were flawed” and that “[o]nly a reliably conducted forensic interview is an acceptable substitute for effective cross-examination.” We disagree.
¶16 The court, after considering expert testimony on the issue, rejected Roberts’s contention that the interviewer’s technique undermined the reliability of Victim’s interview. For example, the court found that Victim “did not appear to be subject to any leading questions.” The court further noted that, even if certain questions could be properly characterized as leading, the experts agreed those questions “were insignificant to the interview” and that Victim’s responses allayed concerns about potentially problematic inquiries.
¶17 Regarding the promise of truth, the court found that, although Victim was not asked at the outset to “promise to tell the truth,” “the content of the interview, the answers given, the responses to the questions, [and Victim’s] ability to correct and say ‘no’ or ‘I don’t know’ . . . demonstrate[d] [Victim] did understand, at the level of a six-year-old, what it means to tell the truth.”
¶18 As to the use of drawings during the interview, the court noted that one of the experts opined that the manner in which the drawings were used was proper; that it was Victim who suggested using the drawings, “probably because she was a six-year-old embarrassed to discuss or talk about the events that she described”; and that the interviewer had Victim explain what she had drawn.
¶19 Finally, with regard to a lack of follow-up questions, the court determined that, given Victim’s responses to the questions posed to her, the interviewer’s failure to “pursu[e] certain additional details” did not render the interview unreliable and that “any lack of thoroughness . . . goes to the weight to be given to the evidence of the interview.”
¶20 The court also generally found that, although the interview was not perfect, the quality of Victim’s responses allayed concerns about any potentially deleterious effect from the interviewing technique employed. For example, the court found that, overall, the allegations described “were sufficiently consistent,” as Victim “told the same or similar story throughout the interview.” The court also found that Victim’s statements contained “sufficient detail or description” given her age; that she “volunteered information, often spontaneously”; and that she “elaborated” and “gave information she thought was relevant to the questions posed to her.” In addition, the court found that Victim’s responses and descriptions “did not appear to be rehearsed,” that there was “no
¶21 Roberts fails to demonstrate that the trial court’s findings are clearly erroneous or that the trial court erred in determining that the interview was sufficiently reliable in light of those findings. Rather, he primarily takes issue with the court’s emphasis on the quality of Victim’s responses rather than the flaws he asserts are evident in the interviewing technique. In doing so, he appears to also suggest that the court ought to have assessed and credited the expert testimony about the interview differently. But Roberts has directed us to no authority suggesting that there is one “right” way to conduct an interview and that any departure from that way will render the interview unreliable. Rather, to make its reliability determination, the court was required to assess the interview in all of its circumstances, with any assistance from the experts’ opinions the court chose to credit. That the court chose to weigh more heavily Victim’s responses than a perceived flaw in the interviewing technique does not, without more, render its reliability determination erroneous. And, more to the point, we will defer to the court’s determination that certain alleged flaws, such as the failure to ask certain follow-up questions or elicit an express promise to tell the truth, did not outweigh the factors demonstrating the interview’s overall reliability. See Salt Lake City v. Reyes-Gutierrez, 2017 UT App 161, ¶ 22, 405 P.3d 781 (“Our role is not to reweigh the evidence, but to determine only if the appellant has demonstrated a lack of evidentiary support for the trial court’s findings. The mere fact that this court might have reached a different result on the evidence presented does not justify setting aside the trial court’s findings.” (citations and internal quotation marks omitted)); State v. Hodges, 798 P.2d 270, 274 (Utah Ct. App. 1990) (stating that where “the judge serves as fact finder, the court has considerable discretion to assign relative weight to the evidence before it,” which “includes the right to minimize or even disregard certain evidence”).
B. Other Determinations
¶22 Roberts also challenges other of the trial court’s determinations—specifically, the court’s determinations as to the timing of the interview relative to the abuse, and its assessment of certain of Victim’s statements that he claims “strain credulity.” We address each below.
1. Timing
¶23 First, Roberts challenges the trial court’s findings as to whether the length of time between the abuse and the CJC interview undermined the reliability of Victim’s statement. The court found that more than one year elapsed between the abuse and the interview but that the timing did “not appear to have affected . . . the reliability of the interview.” It also found that the length of time was “not an unusually long period . . . given the type of allegations” and given the fact that the abuser was “someone who [Victim] viewed as a father-figure.”
¶24 Nevertheless, relying on State v. Nguyen, 2012 UT 80, 293 P.3d 236, Roberts contends that the general proposition that “‘a video-recorded interview of a child might be more reliable than in-court testimony in cases of . . . child sexual abuse because it is made closer in time to the incident’” is “less compelling in this case,” due to the length of time involved. (Quoting id. ¶ 21.) And relying on both Nguyen and State v. Lenaburg, 781 P.2d 432 (Utah 1989), in which the interviews at issue took place substantially closer in time to the alleged abuse, he apparently argues that, regardless of the other circumstances surrounding the interview, the length of the delay between the abuse and the interview in this case rendered the interview incapable of being “better evidence than in-court testimony.” But neither Nguyen nor Lenaburg established a bright-line rule that CJC interviews conducted more than one year from the time of the alleged abuse are per se unreliable. See Nguyen, 2012 UT 80, ¶ 21; Lenaburg, 781 P.2d at 436.
¶25 We also reject Roberts’s argument that, because the interview was conducted more than one year after the abuse, the
2. Incredible Statements
¶26 Next, Roberts contends that the CJC interview was unreliable due to certain incredible statements made by Victim. He again cites Lenaburg, where the Utah Supreme Court determined that a child’s recorded testimony was unreliable in part because of the child’s fantastical statements. 781 P.2d at 436 (concluding that the child victim’s statement could not be viewed as reliable where the child stated, among other things, that during the alleged abuse the defendant had a “monster hand,” that the defendant shot himself and that when he was “‘just about to die, . . . along came fat Jenny,’” and that defendant then died and “‘turned back into mommy’” but “‘still sleeps with a gun’”). Roberts then points to certain of Victim’s statements, apparently alleging that they are similarly fantastical and therefore unreliable. For example, he points to Victim’s statements that Roberts “‘took some scissors and ripped [her] clothes,’” that Roberts “had her ‘touch his wiener’ for ‘twenty days with’ ‘a backscratcher or something,’” and that “[the abuse] happened on a bed with ‘like one hundred pillows.’”
¶27 But in making these assertions, Roberts fails to address the court’s findings on this issue. The court recognized that, although an adult might not describe details in the way Victim did, her statements and descriptions were those “of a six-year-old” and that they were “consistent” and “appropriate” responses for a six-year-old child. Thus, a six-year-old child’s reference to “like a hundred pillows” is a way to describe a large number of pillows in relative terms, not a carefully calculated estimate of the literal number of pillows on hand. The court also determined that, overall, Victim was “sufficiently consistent in her statements about what she explained occurred” and that “[a]ny discrepancies in her statements are things that go to the issue of weight of the evidence which will be left to the Jury.” Having failed to identify an error in the trial court’s findings, Roberts has therefore failed to demonstrate that the court did not appropriately address and resolve any concerns over potential incredulity in the statements identified.3
¶28 In sum, we conclude that the trial court’s findings support its ultimate determination that, notwithstanding Roberts’s arguments to the contrary, the CJC interview was reliable under
II. Roberts’s Motion to Strike Social Worker’s Testimony
¶29 Roberts next argues that the trial court erred when it concluded that Roberts waived his objection to Social Worker’s testimony
A. Trial Proceedings
¶30 During trial, the State called Social Worker, with whom Victim had undergone therapy following the abuse, to testify. Over the course of approximately thirty minutes of direct examination, the State asked Social Worker both factual and general questions related to her treatment of Victim. In particular, the State asked Social Worker specific factual questions about Victim’s use of pictures during their sessions, Victim’s use of a “support person” in therapy, and Victim’s specific behaviors that Social Worker was treating. Interspersed among those factual questions were more general questions not specific to Victim. For example, the State asked Social Worker to describe “the process of disclosure” in child sexual abuse situations, to explain why children might use drawings to “tell their story,” and to opine on whether the types of behaviors Victim exhibited were “consistent with sexual abuse.” All of these questions were asked and answered without objection.
¶31 Near the end of its direct examination, the State asked Social Worker to explain “the process of memory and forgetting” and why a child may not remember certain details related to traumatic events. Roberts objected, arguing that “expertise [had not] been established with respect to [Social Worker’s] ability to talk about memory.” The court sustained the objection. The State attempted to establish foundation by eliciting information about Social Worker’s education, experience, and background related to “children’s memory and the process of memory fade.”
¶32 In response, Roberts asked to conduct voir dire of Social Worker on the issue of memory outside the presence of the jury. At the conclusion of the voir dire, Roberts argued to the court that the issue before the court was actually “twofold”: in addition to the memory issue, he could not recall seeing a notice of expert witness with respect to Social Worker. The court asked the State if it had provided “appropriate notice,” and the State conceded it had not. Roberts then requested that “all [of Social Worker’s] testimony be stricken, all of it[,] . . . because she’s been asked a number of times to give expert opinions about this and that” and that, while “there were things that she talked about that were factual in nature,” “for the last 15 of 20 minutes what we’ve heard about is what’s [her] opinion about how kids behave under these circumstances.”
¶33 The State responded by arguing that Roberts’s objection was untimely. The court agreed, stating that, with the exception of the objection on the memory issue, the objection to Social Worker’s testimony as a whole and the expert opinions was “waived when [it wasn’t] timely made.” The court observed that Social Worker had talked about “many” factual things and that, as to timing, “it’s one thing if there’s a question that goes by” and is revisited “in a few minutes.” However, in this case, “too much time” had gone by with respect to Roberts’s overall objection, and the court determined that it would not, after “20 minutes or a half hour, go back and, if appropriate, tell the jury to just forget that.” On the memory issue, however, the court ruled that it was “too much of a separate area” from the area of expertise of a licensed clinical social worker. Accordingly, the court sustained the objection with respect to the memory issue but it overruled the objection as to the remainder of Social Worker’s testimony and denied Roberts’s motion to strike it.
B. Roberts’s Arguments on Appeal
1. Waiver of the Objection
¶34 Roberts first argues that the court abused its discretion in determining that he waived his objection to Social Worker’s testimony and denying his motion to strike on that basis. We disagree.
¶36 But we need not resolve whether the court exceeded its discretion in concluding that Roberts waived his objection to the admission of Social Worker’s testimony, because we are able to sustain the court’s ruling on another ground—one that was recognized by Roberts in his motion for a new trial and that the State has briefed as an alternate ground for affirmance on appeal. See State v. Butterfield, 2001 UT 59, ¶ 31, 27 P.3d 1133 (“[A]n appellate court may sustain a trial court’s evidentiary ruling on any available ground . . . .” (citation and internal quotation marks omitted)). In his motion for a new trial, Roberts argued that Social Worker’s testimony should have been stricken because the State failed to provide notice as required under
¶37 “The expert witness notification statute,”
(a) If the defendant or the prosecution 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.
(b) If the court finds that the failure to comply with this section is the result of bad faith on the part of any party or attorney, the court shall impose appropriate sanctions. The remedy of exclusion of the expert’s testimony will only apply if the court finds that a party deliberately violated the provisions of this section.
¶38 At oral argument, Roberts contended that two cases—State v. Bredehoft, 966 P.2d 285 (Utah Ct. App. 1998), and State v. Begishe, 937 P.2d 527 (Utah Ct. App. 1997)—suggested that, despite the plain language of the statute, a court could exclude non-noticed expert testimony without finding that the lack of notice was deliberate. But Roberts’s reliance on Bredehoft and Begishe is misplaced.
¶39 Thus, Roberts’s requested remedy—that all of Social Worker’s testimony be excluded because no notice had been provided to him that Social Worker would be testifying as an expert—was not a remedy available to him. Although Roberts could have asked for a continuance, Roberts did not argue below that the State’s failure to give notice was deliberate or in bad faith, and the court made no such finding. As a result, without more, the most Roberts would have been entitled to under
C. Ineffective Assistance of Counsel
¶40 Finally, Roberts also argues that his trial counsel was ineffective for not timely objecting to Social Worker’s testimony. But given our resolution above, we conclude that the timeliness of his trial counsel’s motion is ultimately irrelevant. Even had Roberts’s counsel more timely lodged his objection to Social Worker’s testimony, the remedy to which he would have been entitled was a
¶41 In this regard, it is significant that Roberts’s trial counsel specifically eschewed for tactical reasons the remedy of a continuance. Roberts’s counsel asserted in his motion for a new trial that he strategically chose to request exclusion of Social Worker’s entire testimony “rather than the mandatory remedy” of a continuance under
(citation and internal quotation marks omitted)). As a result, Roberts is hard-pressed to demonstrate that his counsel was ineffective for not making a more timely objection to Social Worker’s testimony where counsel, for tactical reasons, declined to request the remedy to which Roberts would have been entitled. See Strickland, 466 U.S. at 689; cf. Perez, 2002 UT App 211, ¶¶ 39–41 (holding that while a party might have the right to a continuance to remedy a violation under
III. Exclusion of Evidence Relating to Grandfather
¶42 Lastly, Roberts argues that the trial court “erred when it excluded evidence” under
¶43
¶44 During trial, Roberts attempted to question Grandmother about why she was not “too thrilled” that Victim had spent time with Grandfather. After the State objected on the grounds of relevance and undue prejudice, Roberts advised the court that Grandfather was a registered sex offender who had been convicted of “five or six counts of sexual abuse of a child.” He argued that the evidence
¶45 The trial court agreed in part with the State. It found that the evidence was at least relevant but that the probative value was “substantially outweighed by the danger of unfair prejudice” where no evidence suggested that Grandfather was tied “to any of the allegations in this particular case.” The court also noted that, even if Grandfather had been convicted of child sexual abuse, nothing had been presented comparing the circumstances of those offenses to Victim’s allegations of abuse. Accordingly, the court sustained the State’s objection.
¶46 We conclude that the court acted within its discretion in excluding evidence that Grandfather had been convicted of child sexual abuse. The probative value of the evidence was minimal, and its prejudicial effect was significant. See State v. Tarrats, 2005 UT 50, ¶¶ 46–47, 122 P.3d 581 (concluding that the court did not exceed its discretion in excluding the evidence intended to prove that the rape victim had previously invented a rape claim where the “probative value [of the evidence was] low” because “the facts of the two incidents are so attenuated,” and where the “prejudicial effect [was] substantial,” because the evidence was likely to confuse the jurors and “lead them to draw improper inferences . . . that would unfairly impact their assessment of the issues”). Grandfather was a third party with no apparent connection to the alleged abuse; as the trial court acknowledged, even if it was true that Grandfather was a registered sex offender and had sexually abused a child, there was no record evidence tying Grandfather to Victim’s allegations or to the ultimate issue at trial—whether Roberts committed the sexual abuse alleged by Victim.
¶47 Indeed, the evidence’s lack of a substantive connection to the case is evident from Roberts’s arguments on appeal. The primary evidence Roberts relies on to suggest some tie between Grandfather’s previous convictions and Victim’s allegations is the fact that Victim stated during her CJC interview that she was at Grandfather’s house when an incident of abuse occurred. But Victim quickly self-corrected, stating, “I mean, my dad’s house,” and neither Victim nor any other witness ever placed Grandfather near the scene of the abuse. Without more, Grandfather’s convictions did not have probative value to show that Victim mistakenly identified Roberts as her abuser or that Victim’s sexual knowledge may have been acquired from another source. In these circumstances, we have no trouble concluding that the evidence of Grandfather’s convictions, if admitted, would have done little more than confuse or mislead the jury by clouding the issues actually being tried. See State v. Martin, 2017 UT 63, ¶ 52 (concluding that the trial court did not abuse its discretion in excluding the evidence at issue under
CONCLUSION
¶48 For the foregoing reasons, we affirm the trial court’s decisions to admit the CJC interview, deny Roberts’s motion to strike Social Worker’s testimony, and exclude evidence