State v. Stefaniak
900 P.2d 1094
Utah Ct. App.
1995
Check Treatment

*1 complete present candid and information to long challenging

the Board as he was so

conviction in the courts. petition.

affirm the trial court’s denial of the

ZIMMERMAN, C.J., STEWART, C.J., RUSSON, and and

Associate HOWE

JJ., concur. Utah,

STATE of Plaintiff and STEFANIAK,

Steve

and Hult, Logan, appellant. Nathan for Preston, George Logan, appellee. W. for ORME, BENCH, BILLINGS, Before July JJ.

OPINION ORME, Presiding Judge: appeals Steve Stefaniak his conviction for child, involving lewdness A a class misde- meanor, in § violation of Utah Ann. Code 76— (1990).1 Having 9-702.5 determined that legal arguments facts “[t]he are ade- quately presented in the briefs and record process sig- and the decisional would not be nificantly argument,” aided oral Utah 29(a)(3), R.App. P. we reverse and remand for a new trial.

FACTS In the summer of Stefaniak took his step-children four and one of their friends to During Bear Lake. day, the course of the children, Stefaniak and two of the C.C. and H.C., floated out on the lake on two inner paddling tubes. After a considerable dis- shore, tance from H.C. decided to return. amended, analysis. 1. The statute has since been but the to our phraseology pertinent minor variations in are not

1095 objection, that he had lis- repeated across the lake counsel’s continued and C.C. Stefaniak testify in daughter court and she tubes. tened to his larger of the two inner sharing the did not deviate at all from she after H.C. testified that sometime C.C. concerning initially told him Stefaniak’s lewd left, his suit. She swim Stefaniak conduct. approached, boats claimed that when further top of him to had her on Stefaniak guilty of the The found Stefaniak seeing him without clothes. anyone from vent appeals, contend- charged. crime Stefaniak genitals and de- able to see his alia, She was ing, inter that the trial court erred right a flower tattoo on Stefaniak’s scribed permitting the State’s other witnesses bol- would be. just below where his belt side credibility. ster C.C.’s C.C., eventually put According to Stefaniak and, swimming on after realiz-

his suit back ON VICTIM’S COMMENTS to reach the they that would not be able CREDIBILITY lake, flagged down a boat he other side contends the trial court’s Stefaniak secured a ride back shore. allow Bartholomew to testi decision to Grant separated in mother and C.C.’s Stefaniak fy did violated Utah Rule of Evidence as he December, 1992, and divorced early were 608(a) jury. province and invaded first told her moth- shortly thereafter. C.C. agree.2 of Bartholomew’s The admission about the Bear Lake and natural father er part of the State’s case-in-ehief as of 1992. On De- incident mid-December im error because the witness constitutes 29, parents took her to see cember C.C.’s credibility. properly for the victim’s vouched Bartholomew, Di- a caseworker at the Grant 388, 392 See State Family vision of Services. (Utah 938, 1989); P.2d 939- State v. 801 testimony, Contrary to C.C.’s 42 suit. claimed he never removed case, prosecutor the instant that the accusations arose He testified to comment on C.C.’s asked Bartholomew separation and di- of his rancorous course during he conducted the interview demeanor mother. vorce from C.C.’s investigating allega part of his role in as trial, three witnesses: At the State called re against Stefaniak. Bartholomew tions father, her and Grant by stating: sponded testified that he been Bartholomew fairly age. child for her was a normal She years and was now worker for fourteen social responses to pretty open in her She was supervisor child welfare ser- employed as informa- my volunteered questions. She County. further testi- in Box Elder He vices readily. quite to be can- tion She seemed to 4000 he had interviewed 3000 fied that telling me. what she was did about alleged to be victims of sexual children improperly elicited Bartholo- objection, prosecutor The counsel’s abuse. Over defense concerning C.C.’s candor testify that mew’s comments permitted was Bartholomew suggest that during prior interview to readily” and information “volunteered honest, open, and credible wit- C.C. was an quite candid” the inter- “seemed to be 498, Rammel, P.2d 721 over defense ness.3 See State father view. C.C.’s opinions are ex- than erred in to offer also contends that the court 2. Stefaniak testify 608(a) allowing that C.C.’s perts applies the victim's father the board. See across —Rule testimony did not deviate at ah from the first 4,& notes 3 infra. the matter of Stefan- time she disclosed him disposi- improper conduct. In view of iak’s that because the trial 3. The dissent contends concerning Bartholomew’s tion quali- did not determine Bartholomew court However, we note need not decide this issue. to com- he was free fied to 608(a) prohibits opin- Utah Rule of Evidence As ex- of the witness. ment on the concerning of a wit- ion evidence 4, prior plained Utah cases have in note while the witness for unless "the character of ness witnesses, draws no Rule involved by opinion or attacked truthfulness has been witnesses. distinction between Nonetheless, (empha- reputation Id. evidence or otherwise.” added). was not certi- while Bartholomew Lay more entitled witnesses are no sis 1096 1986). (Utah improper testimony.” It is for the factfinder to which is tainted

500 (quoting determine witness See State v. Id. at 942 721 (Utah Workman, 1993). 1986)). 984 P.2d “we did, Allowing as he say cannot that absent the error there is not *3 counsel, objection over the of Stefaniak’s had a reasonable likelihood of a more favorable fact-finding potential “usurp the to the func- result to the defendant.”5 Id. Rimmasch, jury.” judge tion of or 775 P.2d Therefore, testimony at 392. the was inad- CONCLUSION

missible.4 reverse Stefaniak’s conviction and re- mand for a new trial. our resolution Given PREJUDICE appeal, of this we need not address the other Having determined that the court by issues raised Stefaniak. admitting testimony bolstering in erred the credibility, separately the victim’s we must BILLINGS, J., concurs. prejudicial determine whether the error was BENCH, Judge (dissenting): in this case. “If is a reasonable likeli that, error, hood absent the there would have I cannot reverse this conviction on the been a more favorable result for the defen Rimmasch, authority of State v. 775 P.2d 388 dant, [the] then conviction must be re (Utah 1989), Iorg, and State v. 801 P.2d 938 Iorg, versed.” State v. 941 (Utah App.1990). These cases limit the cir- experts cumstances under which can against hinged ease, The State’s case about a In victim’s entirely credibility on the of the victim. The neither the victim’s father nor Bartholomew dispute sole issue in expert. was whether Stefaniak testified as an Both testified as suit, thereby expos- response witnesses in an attack on the physical himself to C.C. There was no victim’s character for truthfulness when de- introduced, testimony evidence nor was there fendant claimed that the victim’s mother con- accompanied from the other children who marriage the cocted the after her to defen- trip April victim Stefaniak on the to Bear dant in prosecution failed 1993. The report qualify Lake. The victim’s was first made tried to incident, several months after the but the trial court prosecution ruled that the midst of domestic turmoil between vic- necessary the had not established the foundation. tim’s mother and Stefaniak. case “[T]his Bartholomew was then allowed to not depended on the assessment only as to the victim’s but that the defendant’s, reported victim’s versus the incident was to him in December support] and there is not ‘other evidence appear [to 1992 and that the victim did not beyond defendant’s conviction’ have been coached at that time. Further- sense, iting opinion testimony concerning fied as an in the technical the State the truthful equally applicable established that he was the head of child welfare ness of witnesses is County persons prevents services in Box being Elder and had inter- trials from turned —"it allegedly viewed 3000 to 4000 children who had into contests between what would amount oath-helpers been victims of sexual largely usurp abuse his fourteen- modem who would Thus, year regardless fact-finding as a jury.” career social worker. the masch, function of or Rim nonexpert, of Bartholomew’s official status as a 775 P.2d at 392. regarded would have Bartholomew to be expertise. a witness of considerable 5. The dissent makes much of the fact that C.C. normally was able to describe a tattoo hidden correctly points by 4. The dissent out that the cases from view Stefaniak's clothes. Since C.C.’s rely easily on have dealt with imparted knowledge witnesses. See mother could have (Utah 1989); State say nothing 775 P.2d 388 the tattoo to of the fact that (Utah 1986); might simply 721 P.2d 498 State have seen it in the course of life, App.1990). ordinary family likely jury's 801 P.2d 938 Howev it is not er, all of those cases turned on Rule assessment turned on this detail to the credibility-bolstering Utah Rules of Evidence. That rule is not limited exclusion of the experts, underlying policy and the behind lim offered more, not that the vic- the father testified true, merely that story was but

tim’s consistently him the same told

victim Iorg Rimmasch or

story. Nothing testimony. I do not be- sort of

cludes this admitting

lieve clearly has abused its discretion.”

trial “court

Iorg, event, any this case turned on whether exposed to the child himself

defendant *4 detail, seeing about

victim. She lower abdomen.

a rose tattoo on defendant’s stand, he made no defendant took the

When deny of the tattoo or the existence

effort to know so explain how the victim came Furthermore, instructing

much it. jury, reemphasized that it the trial court duty exclusive witnesses, and the motives

credibility of the testify falsely.

they may have had to Under circumstances, I do not believe “there

those [any]

is a reasonable likelihood absent evidence], admitting the

error [in a more favorable result for

would have been defendant.” Id. raised defendant are

The other issues I would affirm the conviction.

without merit. Utah, Plaintiff

STATE STREETER,

David C.

Aug.