THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. JACOB RICH STREEPER, Appellant.
No. 20180337-CA
The Utah Court of Appeals
Filed December 22, 2022
2022 UT App 147
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
Second District Court, Ogden Department The Honorable Mark R. DeCaria The Honorable Reuben J. Renstrom No. 161901835 Emily Adams, Freyja Johnson, and Cherise M. Bacalski, Attorneys for Appellant Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 Jacob Rich Streeper confessed to family members and the police to variously drugging, sexually assaulting, sodomizing, and raping his three young daughters, half-sister, and niece. At trial, he stuck to much of what he had confessed and admitted before the jury that he had drugged and molested several young girls, including his own daughters. Yet he claimed that the parts of his previous confessions that related to more egregious sex acts, including rape and sodomy, were false. The jury convicted Streeper on all counts. He now claims that his trial counsel was ineffective for not retaining an expert on false confessions. We affirm.
BACKGROUND1
¶2 In August 2016, Streeper’s wife (Wife)—who was six months pregnant at the time—confronted him about child pornography she found on his iPod.2 In response, Streeper “grabbed [her] and pushed [her] down on the couch,” “sat on [her] lap,” and twisted her “arm as hard as he could to try to get [the iPod] out of [her] hand.” As Streeper pressed into her stomach, Wife screamed, awakening the two oldest of the couple’s three minor daughters, who came into the room. Streeper deleted the child pornography from the retrieved iPod. Wife called the police, her family, and Streeper’s parents. She then kicked Streeper out of the house.
The First Case: Streeper Sexually Abuses His Niece and Half-sister
¶3 Shortly thereafter—apparently in response to the discovery of child pornography on the iPod—Streeper’s niece (Niece), then fifteen years old, revealed that Streeper had touched her vagina when she was nine or ten during a sleepover.3 In a subsequent interview with police officers, Streeper admitted to sexually abusing Niece. During the same interview, Streeper also admitted that he “inappropriately kissed” his oldest daughter
(Daughter 1), who was twelve years old, on the shoulder on a different occasion. Streeper further admitted in this interview that he had digitally penetrated the vagina of his half-sister (Half‑sister) when she was eight or nine and he was eighteen.
¶4 The State charged Streeper with two counts of aggravated sexual abuse of a child (for the acts he admitted to committing on Niece and Half-sister) and two counts of domestic violence related to his assault on Wife.
The Second Case: Streeper Sexually Abuses His Three Daughters
¶5 Around this same time, Streeper’s ten-year-old middle daughter (Daughter 2) revealed that Streeper “had hurt her vagina” and that she had found condom wrappers in her bedroom. Wife found one condom wrapper on the floor next to where Streeper would sometimes sleep when he stayed in Daughter 2’s room. Daughter 2 also reported that Streeper gave her medication to help her sleep and that “she woke up on one occasion with [Streeper] on top of her hurting her vagina.”
¶6 Police officers interviewed Daughter 2 and Daughter 1 at the Children’s Justice Center. Daughter 2 told police that Streeper had “taught her how to french kiss using her tongue with him,” that Streeper touched her vagina, and that when she was younger, he would “rub white cream on her vagina . . . for a long time.” She also revealed that Streeper would give her “white pills to help her sleep” and that she would have stomachaches, vaginal pain, rashes, and headaches after taking these pills. She recalled having difficulty waking up after taking the pills. She “remembered feeling like somebody would grab her hips and pull her down on the bed at night.” Daughter 2 mentioned that Streeper would “watch her while she was taking baths, and it made her feel very uncomfortable.” She shared one incident in which she “accidentally brushed against” Streeper’s private parts when she was getting out of the bathtub. Streeper responded by saying, “You touched my private parts. Now I get to touch yours,” and
chasing her until he was able to touch her vaginal area. Daughter 2 further disclosed that she had seen Streeper take his youngest daughter (Daughter 3), who was three years old, into the bathroom and lock the door and that she could hear Daughter 3 crying.¶7 Daughter 1 revealed to officers that she had “received small white pills” from Streeper “to help her sleep at night.” She remembered waking up with a sore vagina, a stomachache, and a rash on her inner thighs, as well as experiencing painful urination. She recalled that as early as third grade, Streeper would “rub . . . cream on the inside and outside of her vagina” in a way that she described as “being very aggressive” and “for a long time.” She stated that while Streeper was kissing her shoulder, “he had put his leg around her.”
Streeper’s Confessions
¶8 Around the same time that the police interviewed Daughter 2 and Daughter 1, Streeper told his stepfather (Stepfather) that he had inappropriately touched Niece, Half‑sister, and Daughter 2. Stepfather told Streeper that he needed to tell the police about the abuse. But as Stepfather prepared to take him to the police station to be interviewed, Streeper began acting “delirious” and revealed that he had taken fifty pills of Tramadol4 and other medicine in an attempt to kill himself. Stepfather took Streeper to the hospital, where he was admitted and treated.
¶10 Later that day, Wife and Stepfather visited Streeper in the hospital. Streeper admitted to Wife that he had sexually abused all three of his daughters. Specifically, Streeper told her that he had performed oral sex on each child. Streeper also admitted that he digitally penetrated their vaginas and that he would put a condom on and rub his penis against their vaginas until he ejaculated. Streeper also admitted to giving Daughter 2 and Daughter 1 Tramadol specifically so that he could abuse them while they were sleeping.
¶12 Wife and Stepfather reported these additional revelations to the police, and the next day the police officers returned to the hospital to conduct an additional interview. During this interview, Streeper admitted to digitally penetrating each daughter, performing oral sex on each daughter, and “wearing a condom and having his penis penetrate the labia of all three of his daughters.” During this interview, Streeper also admitted that, years ago, he had performed oral sex on Half-sister.
¶13 Based on these new admissions, the State charged Streeper in a second case with three counts of rape of a child, three counts of aggravated sexual abuse of a child, three counts of sodomy upon a child, and two counts of surreptitious administration of a controlled substance.
The Trial
¶14 The two cases were tried together before a jury. At trial, Niece testified that Streeper had rubbed her vagina “skin to skin” in the middle of the night when she was nine or ten. Half-sister testified that Streeper digitally penetrated her vagina when she was almost nine years old.
¶16 Daughter 1 testified that she had awakened to Streeper kissing her arm while having his leg wrapped around her. She also recalled that when she was in third grade, she would sometimes wake up with a “really red” vagina and a rash “between [her] legs” and that on those occasions it was painful to urinate. She remembered once waking up without her pajama bottoms on and her vagina hurting. She also said Streeper would rub cream “very hard” on her when she would report pain in her vaginal area and that he did it “a lot.” Like her sister, Daughter 1 reported that Streeper would give her white pills to help her sleep. She also described Streeper showing his penis to Daughter 3.
¶18 Wife testified that Streeper, while in the hospital, admitted to her that he had committed the following acts: that he had given Tramadol to Daughter 1 and Daughter 2 so that he could “sexually abuse them”; that he had performed oral sex on all three daughters; that he had digitally penetrated each daughter’s vagina; and that, while he and the daughters were nude from the waist down, “he would get on top of the girls, . . . would rub his penis through their vaginas skin to skin, and that he would wear a condom and do this until he orgasmed.” Wife described Streeper’s demeanor while he was making these admissions as “calm” and “clear.” She noted that Streeper “went into a lot of detail” in recounting the abuse, sharing information that she “didn’t feel [she] needed to know”—“like he was enjoying telling” her about what he had done to his daughters.
¶20 Stepfather also testified about Streeper’s separate admissions to him that he had sexually abused Niece and Half‑sister. Stepfather further revealed that Streeper admitted to performing oral sex on each of his daughters and “that he had been doing it for quite a while.” Regarding Daughter 1 and Daughter 2, he testified that Streeper admitted to digitally penetrating and putting his condomed penis next to their vaginas.
¶22 Nurse stated that it is “not uncommon, especially in prepubertal girls” who are abused by family members, to not find physical indications of sexual abuse “because the goal [of the abuser] is to . . . have sexual gratification without harming the child.” Nurse noted that “intralabial intercourse, [which] is rubbing between the labia, . . . creates friction, which causes heat [and] . . . can cause injury to those tender tissues” that would typically heal “within a day or two.” Nurse explained that this type of sexual abuse “can cause discomfort, especially during the time right after it’s happening,” including “burning on urination.”
¶24 Streeper testified in his own defense. During his trial testimony, he admitted to rubbing Niece’s vagina for his sexual gratification, digitally penetrating Half-sister’s vagina, putting his “mouth on” Half-sister’s vagina when she was four years old, kissing Daughter 1 “inappropriately” on her shoulder, digitally penetrating Daughter 2’s vagina, and giving his daughters Tramadol.
¶26 After deliberation, the jury found Streeper guilty on all counts.
Rule 23B Remand Findings
¶27 Claiming on appeal that he received ineffective assistance of counsel at trial, Streeper filed a motion under rule 23B of the Utah Rules of Appellate Procedure seeking remand to develop evidence on whether his trial counsel (Counsel) was ineffective for not retaining an expert witness on false confessions. This court remanded the matter “for the limited purpose of supplementing the record with evidence and entering findings of fact relevant to Streeper’s claim[] that [Counsel] was ineffective . . . in not presenting at trial expert testimony on the subject of false confessions.”
¶29 Regarding Expert’s testimony, the court made the following findings of fact:
- Expert asserted that “false confessions do occur, but it is not clear how often they occur.”
- Expert explained that the “Reid method” of police interrogation, commonly used in the United States, functions by “(1) establishing a sense of hopelessness in the individual being interrogated; (2) causing the individual to feel that confessing is their best option by offering excuses for their conduct and raising the costs of not confessing; and (3) obtaining a detailed confession from the individual.” The goal of police interrogation using this method “is to convince people to confess when they would not otherwise do so using the following tactics: convincing them that the officers already know the truth and have proof of their guilt; encouraging them to tell their side of the story; suggesting that if they confess they may get in less trouble, get help, or go home; and reminding them that taking responsibility for their actions will be looked upon favorably by others.”
- Expert testified that the “Reid method of interrogation has been criticized by scholars and disavowed by organizations, such as the Federal Bureau of Investigation.”
- Expert “stated that suspects accused of sexual abuse are more vulnerable to law enforcement’s efforts to establish a feeling of hopelessness because suspects believe there is no evidence to prove they did not commit the crime, and/or it is their word against the victim’s word.”
- Expert testified “that individuals falsely confess when interrogated by law enforcement for various reasons, including: (1) believing that if they confess, the interrogation would end and they could leave; (2) believing the interrogator’s minimization of their alleged actions, and that if they confess they would not get in trouble, or get in less trouble than if they did not confess; (3) wanting to avoid further conflict; (4) concentrating on escaping the present situation without considering potential future consequences; (5) [being] overwhelmed with stress; and (6) [believing] that even if they falsely confess, once the investigation is concluded, they will be exonerated based on the evidence.”
- Expert “testified that the same pressures to falsely confess during interrogations by law enforcement can exist, and be even more potent, in interrogations by family members because family members can make threats and promises based on familial relationships that law enforcement officers cannot. However, she did not refer or cite to any research that supports this conclusion.”
- Expert explained that “[r]esearch has shown that jurors often assume that a confession indicates a defendant is guilty and do not understand that even a ‘normal’ innocent person may falsely confess given the right conditions.” And Expert testified that “[s]tudies suggest that when attempting to detect if a confession is false, people are wrong approximately 50% of the time.”
- Expert reviewed the transcripts, listened to the audio recordings of the two police interviews, and read the statements made by Streeper’s family members. Expert concluded that the officers used the Reid method.
- Expert “testified that the officers who interviewed [Streeper] established an overall sense of hopelessness during the interviews . . . by reminding [Streeper] that he had already confessed to his family, by accusing him of not telling the whole story, and by stating that they knew what happened and just wanted him to confirm what they already knew.”
- Expert “believed that the officers convinced [Streeper] that confessing was his best option by suggesting that [Streeper] did not have bad intentions, his conduct was impacted by his addiction, he had lessened the negative impact on the children by engaging in inappropriate conduct while they were sleeping, he should take the opportunity to tell his side of the story, he would be worse off if he did not confess, his statements would be confidential, and confessing would help heal his family.”
- Expert believed that Streeper “exhibited some traits of individuals who may be prone to false confessions including being stressed, depressed, suicidal, and addicted to opioids.”
- While Expert “would not testify as to whether any of [Streeper’s] statements were actually false,” she “concluded that less weight should be given to [Streeper’s] confessions to both his family and the police because of both his physical and mental condition and the tactics used by his family and the police to get him to confess.”
¶31 The court entered the following factual findings regarding Streeper’s testimony on remand: (1) Streeper said Wife was “very harsh” when asking him what he had done to their daughters, causing him to make “things up to give her the answers he thought she was looking for and to stop the questioning”; (2) Streeper asserted that he confessed to Stepfather because Stepfather “pressured him with religion”; (3) Streeper “said that he confessed to the police because they were manipulative and kept pushing and prying and he was tired of it”; (4) Streeper “did not state that he informed [Counsel] that he falsely confessed” in response to the allegedly manipulative interrogation techniques; and (5) Streeper “testified that he believed the police investigation and his children would exonerate him from the things he was making up.”
¶32 Streeper now appeals most of the convictions related to his three daughters.5
¶33 The sole issue on appeal is whether Streeper received ineffective assistance when Counsel failed to consult an expert witness on false confessions. “In ruling on an ineffective assistance of counsel claim following a rule 23B hearing, we defer to the trial court’s findings of fact.” State v. Ayala, 2022 UT App 1, ¶ 16, 504 P.3d 755 (cleaned up). But the ultimate question of whether Counsel rendered ineffective assistance is before us for the first time, and it is a question we consider as a matter of law. See State v. Guerro, 2021 UT App 136, ¶ 25, 502 P.3d 338 (“When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” (cleaned up)).
ANALYSIS
¶34 To prevail on a claim of ineffective assistance of counsel, Streeper “must demonstrate that (1) his counsel’s performance
¶35 “Here, because we conclude that [Streeper’s] defense was not prejudiced by Counsel’s alleged[ly] deficient performance, we limit our analysis to the second prong.” See State v. Ayala, 2022 UT App 1, ¶ 22, 504 P.3d 755. “Counsel’s performance is prejudicial if the defendant can demonstrate that there is a reasonable probability that the outcome of his or her case would have been different absent counsel’s error. Accordingly, the defendant must do more than simply show that the errors had some conceivable effect on the outcome of the proceeding.” State v. Wright, 2021 UT App 7, ¶ 54, 481 P.3d 479 (cleaned up). In other words, “the proof that [Counsel’s] acts or omissions prejudiced [Streeper] must be a demonstrable reality and not a speculative matter.” See State v. Nelson, 2015 UT 62, ¶ 10, 355 P.3d 1031 (cleaned up).
¶36 For the following reasons, we conclude that—on the facts presented here—Streeper was not prejudiced by the lack of expert testimony on false confessions.
¶37 First, the idea that Streeper was pressured to confess falsely was established independently of Expert’s proffered testimony. Streeper’s own testimony put before the jury not only the assertion that his confessions were false but the putative reason for his false confessions. The jury heard Streeper assert that he falsely confessed because he felt like he was being “ganged up on” and that he just acquiesced to get the questioning to stop. Even without Expert’s testimony, the jury understood that Streeper—
¶38 Second, Expert was able to review only the transcripts of Streeper’s confessions to the officers. There were no transcripts of his confessions to Wife and Stepfather because they were relayed entirely by the testimony of Wife and Stepfather. Consequently, Expert had no basis—other than the rather unremarkable observation that family members can put pressure on a person— to assert that Wife and Stepfather employed coercive interrogation techniques to force multiple false confessions out of Streeper. Even though Expert’s testimony might have provided additional nuance as to why Streeper would have falsely confessed to the police officers, her testimony would have done little to explain—beyond what the jury already knew—why he purportedly falsely confessed to Wife and Stepfather. Any assertion by Expert that familial pressure may exist would come as a revelation to no one. The jury—by virtue of the lived experience of its members—was well aware that kin and clan might sometimes employ moral force in an effort to make one say what one does not mean, hoping to repair tattered relationships. Expert’s testimony would have added nothing to the jury’s awareness of this basic aspect of familial dynamics.
¶39 Third, the consistent, corroborative, and discrete nature of Streeper’s repeated confessions belies the notion that he may have been prejudiced by the lack of expert testimony on false confessions. The jury heard Wife and Stepfather testify that Streeper had confessed to oral sodomy, digital vaginal penetration, and rubbing his penis against the vaginas of his three daughters. As we have explained, Expert’s testimony would have provided no foundation for the jury—apart from what its members already knew—to conclude that these confessions to family members were false. The day after he had made these admissions to his family, he confessed substantially the same to the officers. Given the consistency of Streeper’s multiple
confessions, we find it unlikely that Expert’s testimony would have swayed the jury to believe Streeper’s assertion that select aspects of his confessions were false.
¶40 Fourth, the consistency of Streeper’s confessions with the overall evidentiary landscape cuts against prejudice. Wife not only testified about the abuse Streeper confessed to having committed, but she also shared testimony about the various physical symptoms (namely, stomachaches, headaches, rashes, and vaginal infections) that her daughters experienced when Streeper lived in the family home and that condom wrappers were found in Daughter 2’s room. In this same vein, the jury heard the testimony of the three daughters. Each testified about the sexual abuse Streeper had inflicted on them—all apart from, but corroborative of, Streeper’s confessions. While the two older daughters could not recall the specifics of much of the abuse because Streeper had drugged them—a misdeed he admitted to at trial and does not now dispute—they did testify in detail about the physical ailments (namely, painful urination, irritated vaginal areas, and frequent headaches) they suffered because of the abuse. And the daughters testified to other highly suspicious circumstances and behavior that pointed toward Streeper sexually abusing them. He rubbed cream on their vaginal areas, which Daughter 1 described as Streeper doing in a “very hard” manner. Daughter 1 recalled waking up without her pajama bottoms on and having a sore vagina; she also recounted how she once awakened to Streeper kissing her shoulder and having his leg wrapped around her. Daughter 2 testified about Streeper twice kissing her on her tongue. And she also said that she recalled pressure pushing her into the bed and feeling like she was being “pulled down” in her bed at times. She described once awakening and seeing Streeper at the foot of her bed with a “worried and shocked” look on his face. Daughter 2 also revealed that she found a condom wrapper in her closet while cleaning her room after Streeper had departed the family home. Even
Streeper’s youngest daughter testified that Streeper had “licked” her vagina and “hurt” it with his hand.
¶41 This evidence of the abuse was entirely distinct from—but nevertheless corroborative of—the details Streeper shared in his confessions. From this perspective, Streeper was not prejudiced by the lack of Expert’s testimony. Even with Expert’s testimony, the jury would have been unlikely to believe that Streeper falsely confessed, because the details revealed in his allegedly false confessions matched the other evidence (i.e., his daughters’ testimonies and Wife’s non-confession testimony) too closely. The other evidence was simply too corroborative of Streeper’s rape and sodomy confessions for a rational jury to believe Streeper’s assertion that his confessions on those points were false. In other words, Streeper’s confessions provided a lockstep explanation of the experiences of the three girls and their physical ailments such that finding Streeper had spoken truthfully in making all his confessions was the overwhelmingly likely conclusion. The testimony of Expert would have done little to change this dynamic.
¶42 Fifth, Streeper’s own testimony negates his assertion of prejudice by making it unlikely that the jury would believe that he committed some of the acts but not others. The jury heard Streeper testify that he had sexually abused Half-sister and Niece by touching their vaginas when they were about the same age as his daughters. It heard Streeper admit to sodomizing Half-sister by putting his “mouth on” her vagina when she was only four years old. He also testified that he had digitally penetrated Daughter 2 and “inappropriately” kissed Daughter 1 on the shoulder. Additionally, he told the jury that he had given his daughters Tramadol. Streeper never recanted any of these admissions or asserted that they were false. Against this backdrop, Streeper asked the jury to believe that he truthfully confessed to sodomizing, digitally penetrating, and drugging some of his victims but to dismiss as false his confessions to doing
additional acts to these and other victims. In other words, he was trying to convince the jury to believe his selective identification of true and false confessions. To be blunt, Streeper’s parsing of reality simply strains credibility to such an extent that we do not believe it at all likely that Expert’s testimony, no matter how eloquent, would have done anything to sway the jury to believe Streeper’s explanation of his allegedly false confessions. His trial version of carved-out false confessions was simply too much to believe. Given this reality, we are unconvinced that the absence of Expert’s testimony harmed Streeper in any way. The outcome of this trial had little to do with the lack of expert testimony and a lot more to do with Streeper’s own actions—especially his admissions, which were notably corroborated and consistent with the totality of the evidence presented at trial.
¶43 Sixth, even if Expert’s testimony had been presented to the jury, the limited nature of her conclusions would have been of little help to Streeper. Expert did not testify that Streeper’s confessions “were actually false” but that “less weight should be given” to his confessions because of Streeper’s mental and physical state and the tactics employed by his family and police “to get him to confess.” And given all the corroborative evidence supporting the truth of Streeper’s confessions, we do not think the jury would have been likely to give Streeper’s confessions less weight. But even if they did, we think it likely that they would have reached the same result. Giving his confessions less weight does not mean ignoring them completely, and given the corroborative nature of the evidence, the jury was still likely to conclude that Streeper did the things he denied.
¶44 In sum, the jury was well aware of Streeper’s assertion that some of his confessions were false. It also heard abundant testimony from Streeper’s victims, from Wife, from Stepfather, from police officers, and from Streeper himself. And that testimony set forth circumstances highly suggestive of repeated sexual abuse of his daughters, including rape and sodomy. Given
these considerations, Expert’s testimony would not have likely swayed the jury to conclude that Streeper’s confession to those more serious acts was false. See generally State v. Prater, 2017 UT 13, ¶ 41 n.5, 392 P.3d 398 (stating that a jury is “well positioned to consider” a witness’s “explanation” for “shifting” stories and conclude which version of events to believe). Thus, while Counsel could have called an expert, any effect of not doing so, in this particular case, was “not so profound as to undermine our confidence in the proceeding’s outcome.” See State v. Ayala, 2022 UT App 1, ¶ 24, 504 P.3d 755 (cleaned up).
CONCLUSION
¶45 Having determined that Streeper was not prejudiced by the absence of expert testimony on false confessions, we conclude that his claim of ineffective assistance is unavailing.
¶46 Affirmed.
MORTENSEN, Judge