State v. SelzerState v. Selzer
Opinion
¶ 1 Jon Selzer appeals from his convictions on two counts of aggravated sexual assault, arguing that he received ineffective assistance of counsel and that his convictions are barred by the rule against multiple prosecutions arising from a single criminal episode. We affirm.
BACKGROUND 1
¶ 2 Selzer and his live-in girlfriend, 8.G., spent the day and evening of May 81, 2008, drinking vodka together in their home and continued doing so into the early morning hours of June 1. Around 3:00 a.m., Selzer got into the shower and S.G. joined him. S.G. thought that Selzer was behaving strangely in the shower, and she got out of the shower and went to the couple's bedroom.
¶ 3 As S.G. was toweling off, Selzer entered the bedroom and demanded oral sex. S$.G. said no and told him, "I don't want to do this." Selzer responded, "You're my woman. You're supposed to do these things." Selzer then forced S$.G. to perform oral sex on him. S.G. did not attempt to pull away because she was seared of the way that Selzer was acting. Selzer then told S.G. to lie down on the bed and had intercourse with her. S.G. repeatedly told him to stop and to get off of her, and Selzer responded by squeezing her throat with his hand. S.G. continued to resist until Selzer finally stopped.
¶ 4 S.G. was distraught and went to the kitchen to have a drink and calm down. She eventually decided to walk to a nearby gas station to buy cigarettes, and Selzer joined her. On the way to the store, Selzer knocked S.G. to the ground and began hitting her and verbally berating her. Selzer continued this behavior until they reached the gas station at about 5:45 am., where the two entered and made their cigarette purchase. As soon as they left the gas station, Selzer began hitting S.G. again. The gas station attendant saw this assault and heard S.G. yell, "[Pllease, please don't hurt me any more." The attendant called 911, and police officers arrived to see Selzer with his hands around S.G.'s neck.
¶ 5 The officers arrested Selzer, who admitted to them that he had been "pushing [S.G.] around ... a little." S.G. was hysterical and told the officers that Selzer had been trying to kill her. The officers observed that S.G. had red marks on her face, had cuts and scrapes on her arms and hands, and was bleeding from the mouth. However, S.G. did not inform officers at this time that Selzer had also sexually assaulted her.
¶ 6 After Selzer was arrested, S.G. went home to care for her child and eventually took the child to his father's motel room, where S.G. slept the rest of the day. When she awoke in the evening, her child's father convinced her that she should go to the hospital to get examined. She went to the emergency room and informed medical personnel that she had been sexually assaulted. She was then examined by Dr. Steven Em-bley and Susan Chasson, a trained sexual assault nurse. The examination revealed a small tear on S.G.'s labia as well as redness to the roof of S.G.'s mouth.
¶ 7 Selzer's physical and sexual assaults on S.G. resulted in two separate prosecutions.
¶ 8 On June 10, 2008, the Utah County Attorney initiated the instant prosecution by charging Selzer with two first degree felony counts of aggravated sexual assault and one third degree felony count of domestic violence aggravated assault.
2
These charges arose from S.G.'s interview with police following her sexual assault report and examination. On November 12, 2008, Selzer filed a motion to dismiss all of the outstanding charges against him, alleging that they arose out of a single criminal episode which included the misdemeanor assault (the gas station assault) that he had pleaded guilty to in the separate prosecution by Provo City and were therefore barred by Utah Code sections 76-1-402 and -408. See generally
9 Prior to trial, the State gave notice that it intended to call Dr. Embley and Nurse Chasson as expert witnesses regarding their examination of S.G. Thereafter, Selzer successfully sought a trial continuance to prepare a response to Embley and Chasson's testimony. Selzer's counsel had difficulty contacting his preferred sexual assault expert, Sue Bryner-Brown, and was referred to another sexual assault nurse, Diane Crockett. Crockett reviewed the S.G. examination report and pictures of S.G.'s injuries and concluded that the injuries to S.G.'s mouth and labia were consistent with both consensual and nonconsensual sexual activity. Sel-zer's counsel asked Crockett if the State's experts would have to concede that the injuries were consistent with consensual as well as nonconsensual sex, and Crockett told him that she thought they would have to. Relying on Crockett's evaluation and advice, Sel-zer's counsel did not interview the State's experts, nor did he retain Crockett or any other expert to testify at trial.
¶ 10 At trial, Embley and Chasson both testified that S.G.'s injuries were consistent with nonconsensual sex. Further, and particularly with regard to the labial tearing, both experts testified that the injuries were unlikely to have resulted from consensual sex. Chasson testified that she had never seen a mouth injury similar to S.G.'s outside of the context of sexual assault and that she had never seen a similar labial injury resulting from consensual sexual activity. However, both experts conceded that it was possible that the injuries to S.G.'s mouth and labia were not caused by forcible sex. S.G., the gas station attendant, and Selzer himself also testified at trial. The jury ultimately convicted Selzer on both aggravated sexual assault counts, and he now appeals.
¶ 11 This court granted Selzer's request for a rule 28B remand to address the issue of trial counsel's effectiveness regarding the decision not to present expert testimony that S.G.'s mouth and labia injuries were consistent with consensual sexual activity. See generally
ISSUES AND STANDARDS OF REVIEW
¶ 13 On appeal, Selzer argues that his trial counsel provided ineffective assistance by failing to adequately investigate the State's experts and failing to present rebuttal expert testimony that S.G.'s mouth and labia injuries were consistent with consensual sex. "In ruling on an ineffective assistance claim following a [rlule 23B hearing, we defer to the trial court's findings of fact, but review its legal conclusions for correctness." State v. Arriaga,
¶ 14 Selzer also argues that his convictions are barred because they arise from the same eriminal episode as the misdemean- or assault to which he had previously pleaded guilty. Therefore, Selzer argues, the district court erred when it denied his motion to dismiss. "A trial court's decision to grant or deny a motion to dismiss presents a question of law, which we review for correctness." State v. Horrocks,
ANALYSIS
I. Ineffective Assistance of Counsel
¶ 15 Selzer first argues that his trial counsel performed ineffectively by failing to adequately prepare for and counter the testimony of the State's expert witnesses. Specifically, Selzer argues that his trial counsel had a duty to interview Embley and Chasson prior to trial and that these interviews would have revealed the need to retain a defense expert to testify that S.G.'s mouth and labia injuries were consistent with consensual sex.
¶ 16 To succeed on his ineffective assistance of counsel claim, Selzer must show that "(1) trial counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment, and (2) counsel's deficient performance prejudiced him." State v. Chacon,
¶ 17 Selzer argues that his counsel failed to conduct an adequate investigation into the likely testimony of the State's expert witnesses, and that this failure to investigate and the resulting failure to call a defense expert constitutes deficient performance on the part of counsel. See generally Houskeeper v. State,
¶ 18 We disagree with Selzer's characterization of his counsel's actions and determine that counsel did conduct a sufficient investigation to justify his decision not to present a defense expert. Here, counsel obtained a trial continuance to prepare for the State's expert witnesses and had Crockett, a qualified expert, review S.G.'s sexual assault examination report and pictures of her mouth and labia injuries. Crockett determined that, in her opinion, S.G.'s injuries were consistent with consensual as well as nonconsensual sex. - Crockett further assured Selzer's counsel that the State's own experts would have to concede as much. Sel-zer's counsel reasonably relied on Crockett's opinion, and it was not deficient performance for him to have done so. See Archuleta v. Galetka,
¶ 19 Further, this case is readily distinguishable from Hales. In Hales, trial counsel's "failure to hire a qualified expert to review the CT seans constituted a failure to conduct an adequate investigation." - See
¶ 20 We are also not convinced by Selzer's argument that his counsel's handling of the State's expert testimony was prejudicial. The State's primary evidence against Selzer was S.G.'s testimony that Selzer had sexually assaulted her, and we disagree with Selzer's assertions on appeal that "[S.G.'s] testimony at trial was not credible" and that "the jury was left to determine whether the sexual activity between Selzer and [S.G.] was consensual or nonconsensual solely on the testimony of the State's Expert Witnesses."
4
Furthermore, both of the State's experts repeatedly testified-consistent with Crockett's pre-trial assessment-that S.G.'s injuries could have occurred during consensual sex. We see no reason to believe that the jury's assessment of S.G.'s credibility would have been significantly altered had
II. Single Criminal Episode
¶ 21 Selzer next argues that his aggravated sexual assault convictions are barred because they resulted from the same "single criminal episode" as his previous conviction for the gas station assault. See generally Utah Code Ann. $ 76-1-401 (LexisNexis 2008) (defining "single criminal episode");
122 Utah Code section 76-1-403(1) states,
If a defendant has been prosecuted for one or more offenses arising out of a single criminal episode, a subsequent prosecution for the same or a different offense arising out of the same criminal episode is barred if:
(a) The subsequent prosecution is for an offense that was or should have been tried under Subsection 76-1-402(2) in the former prosecution; and
(b) The former prosecution:
(i) resulted in acquittal; or
(ii) resulted in conviction....
Id. § 76-1-408(1). Utah Code
123 Here, it is undisputed that Selzer was subjected to a prior prosecution that resulted in his conviction on the gas station assault.
6
It is also readily apparent that a single court-the district court-would have had jurisdiction over all of the charges against Selzer had they been charged in one information. See
¶ 24 When the district court denied Selzer's motion to dismiss, it did not make express findings on either of these two issues, ruling only that "[the] State is permitted to proceed with respect to the sexual charges." Further, Selzer did not request that the district court clarify its ruling and enunciate its exact reasoning. Under these cireumstances, Selzer must demonstrate that there was no viable reason for the district court to deny his motion to dismiss, le., Selzer must establish on appeal that there was only a single criminal episode and that the first prosecutor knew about the sexual assaults when Selzer was arraigned on the gas station assault charge. Cf. State v. Robison,
¶ 25 Under the circumstances presented by these facts, the district court could have properly concluded that the sexual assaults and the gas station assault did not arise from a single criminal episode. A "single criminal episode" is defined by statute as "all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective."
¶ 26 In addition to the timing requirement, the statute requires that the various offenses be in furtherance of a "single criminal objective." See
127 In light of these considerations, we cannot say that Selzer has demonstrated that the sexual assaults and the subsequent gas station assault necessarily constituted a single criminal episode. State v. Robison,
¶ 28 To prevail on appeal, Selzer would also need to establish that the sexual assaults were "known to the prosecuting attorney at the time [Selzer was] arraigned on the first information or indictment." See
¶ 29 In sum, we are not convinced that the district court erred when it denied Selzer's motion to dismiss. The district court could have based its ruling on a finding that the various crimes arose out of separate criminal episodes, or on a finding that the first prosecutor did not know about the sexual assaults, or both. Selzer did not ask the district court to clarify its ruling, and he has failed to establish on appeal that all of the crimes arose from a single criminal episode and that they were known to the first prosecutor at the time Selzer was arraigned on the gas station assault charge. For these reasons, we affirm the district court's denial of Sel-zer's motion to dismiss.
CONCLUSION
¶ 30 We determine that Selzer has not established that his trial counsel provided ineffective assistance in his handling of the State's expert witnesses. We also determine that Selzer has failed to demonstrate error in the district court's denial of his motion to dismiss. Accordingly, we affirm Selzer's convictions.
Notes
. We recite the facts in the light most favorable to the jury's verdict. See State v. Jeffs,
. The June 10 information also included one count of retaliation against a witness and one count of domestic violence in the presence of a child, but those charges were dismissed at Sel-zer's preliminary hearing.
. At the rule 23B remand hearing, Bryner-Brown testified that she had personally trained Crockett, that Crockett was qualified to "give good accurate medical opinions," and that Sel-zer's counsel had made a "good choice" when he consulted with Crockett.
. Selzer's allegation on appeal that S.G.'s testimony was not credible is based on certain false or inconsistent statements that S.G. had made to police in an effort to conceal the fact that she had left her young child alone and unattended when she went with Selzer to buy cigarettes. None of the inconsistencies or falsehoods identified by Selzer bore directly on the issue of consent. We also note that Selzer's own testimony on the consent issue was less than compelling, including his statements that S.G. was "my woman when we were together" and, "She don't have to do anything she don't want to, but they are things that people claim to whatever when they consider someone something, you know what I mean?" - Other testimony by Selzer that may not have helped his case included his assessment that his beating of S.G. was "probably not acceptable" but was "nothing to how she was getting beat up by her boyfriend" and his final statement on cross-examination: "She'll live. She's a strong woman. - She'll get over it, but all this right prosecution and trial-Jisn't necessary."
. Selzer makes no direct argument on appeal that his counsel should have retained Bryner-Brown as a trial expert. He does, however, seem to assume that either Bryner-Brown or Crockett would have testified consistently with Bryner-Brown's remand hearing testimony. We note that the State argues that if Selzer's counsel had elected to call an expert at trial, it would likely have been Crockett rather than Bryner-Brown because counsel had been unable to contact Bryner-Brown when he attempted to do so. We also note that Crockett's pretrial assessment was much less favorable to Selzer's defense than Bryner-Brown's later testimony at the remand hearing.
. Selzer pleaded guilty to the gas station assault charge, and his guilty plea constitutes a conviction for purposes of Utah Code section 76-1-403. See
. We recognize that the Provo City prosecutor could not have charged Selzer with the felony sexual assaults even if he had been aware of S.G.'s allegations. See
. We note that the timing requirement depends largely on the factual circumstances. Where multiple acts are "manifestations of a single, clear, criminal objective, the timing between the two incidents is not as crucial." State v. Mead,
. To the extent that the district court did base its ruling on an unstated finding that the "specific facts of the case" did not establish a single criminal episode, see State v. Strader,