*1 III.
We examined other contentions have parents to why
made the 1978 action, should their
amendment not bar
find contentions those be without
merit. judgment the district court
affirmed.
HALL, C.J., STEWART, Associate
C.J., ZIMMERMAN, and DURHAM
JJ., concur. Utah, Plaintiff
STATE
Respondent,
v. WALKER,
Bryan Defendant Appellant.
No. 20921.
Supreme Court Utah.
Aug.
192 granting
сourt erred in not
the defense
motion for a new trial. We reverse on the
ground
insufficiency
of
of the evidence.
This Court has had a well-established
standard of
review verdicts
criminal
cases,
applied
jury
which we have
to both
reviewing
and bench verdicts. When
sufficiency
supporting
of evidence
a convic-
tion, we have said that we will overturn a
“only
verdict
when the evidence is so lack-
per-
that a
insubstantial
reasonable
son could not have reached that verdict
beyond a reasonable doubt.” State v.
Isaacson,
(Utah 1985);
704 P.2d
557
Tanner,
(Utah
Statе v.
675 P.2d
550
1983);
Petree,
State v.
659 P.2d
(Utah 1983) (review
verdict).
jury
of a
1, 1987, however,
January
On
52(a)
Rule of
Utah
Civil Procedure
took
effect, providing:
upon
In all actions tried
the facts with-
jury
advisory
out a
jury,
or with an
specially
court shall find the facts
separately
state
its conclusions of law
thereon,
judgment
shall be entered
58A;
pursuant
granting
to Rule
refusing interlocutory injunctions the
George Handy, Ogden,
B.
for defendant
similarly
court shall
set forth the find-
appellant.
ings of fact and conclusions of law which
grounds
constitute the
of its action. Re-
Wilkinson,
Dorius,
David L.
Earl F.
Salt
quests
findings
for
necessary
are not
for
City,
рlaintiff
Lake
respondent.
purposes of review. Findings
fact,
documentary
whether based on oral or
DURHAM, Justice:
evidence, shall not be set aside unless
charged
Defendant was
and convicted in
erroneous,
clearly
regard
and due
shall
a bench trial of
aggravated
two counts of
given
be
opportunity
the trial
a child. He was thereafter
court
the credibility
statutory
sentenced to a
minimum manda-
witnesses.
tory
years
sentence of three
to life on each
added.)
(Emphasis
52(a) applies
Rule
count, both terms to run concurrently. De-
criminal cаses
virtue of Utah Code Ann.
appealed
fendant
ground
has
(1982),
77-35-26(g)
provides:
which
“The
§
there was insufficient
prove
evidence to
procedure relating
appeals
rules of civil
that he was an adult when he committed
govern
appeals
shall
criminal
to the Su-
the offenses. He also raises four addition-
preme
except
provid-
Court
as otherwise
points
appeal: first,
al
81(e) (civil
ed.” See also Utah R.Civ.P.
excluding
court erred in
procedure
apply in
rules
the absence of
witnesses; second,
two defense
contradictory
procedure).
rule of criminal
allowing
court erred in
certain wit-
testify
52(a)
nesses to
language
to out-of-court statements
of Rule
is similar to
victims; third,
prosecutor
that the
the Federal Rules of Civil Procedure. Fed-
improperly led the victim
witnesses
di-
eral case law has defined the
standard
examination; and, fourth,
rect
Wright
review the federal rule and
&
case)
against
that standard as fol-
are
weight
Miller summarizes
clear
evidence,
appellate
lows:
or if the
court other-
wise reaches a definite
firm
conviction
say
appel-
not accurate to
[I]t
made,
findings
that a mistake has been
of the
late court takes that view
(or verdict)
bewill
set aside.
appellee,
is most favorable to
that all
that it assumes
conflicts
Although
applied
we have
the new
*3
favor,
in his
evidence were resolved
and
52(a)
date, see,
Rule
since its
e.g.,
effective
given
that he must
of all
be
benefit
Ashton,
(Utah
v.
Ashton
Defendant followed the social worker’s mer of which she understood to mean spoke Mrs. ongoing recommendations and H. abuse had been until a Following prior January that conversa- few months to their conversation in tion, police. January. Mrs. H. contacted the She had with Officer John Stall- an initial interview witnesses, Defense counsel called two de- ings subsequently met with Officers bishop fendant’s and the DFS social worker Hillman and Diane Hancock. Officer Rose testify he saw November about po- the victims at the Hillman interviewed concerning what defendant told them station, Hancock inter- lice and Officer prof- time the offenses occurred. After a home. At viewed the victims at their indicating they testify fer would that de- time, family lived South fendant told them the аbuse occurred in had resided evidence established thereafter, the trial court approxi- on Adams Street in until determined that defendant’s out-of-court ap- mately February of 1984. The victims qualify exception statements did not as an *4 parently stayed family 804(b) hearsay rule under Rule be- (January April) several months because they cause tended to “exonerate” him of having problems. their mother was medical charge the by for which he was on trial Thereafter, April they moved to establishing juvenile. his status as a Ogden. Defendant took the stand and testified trial, Prior to defendant made a motion twice, touching had occurred jurisdiction on lack of to dismiss based both times in the summer of 1983. He also The the district court. trial court denied girls geni- denied that the had touched his the motion ruled that the issue of when and tals, testimony, as claimed in their or the offense was committed should be deter- (Defendant ejaculated. he had did not position mined at trial. State’s appear meaning to know the of this term that defendant molested the children on the prosecutor him). explain and the had to it to them, last occasion on which he cared for got Defendant further testified that he no days eighteenth birthday. his after acts, pleasure from the that he was not only in- Defendant maintained that the sexually girls, attracted to the and that he year stances of occurred more abuse than a ejaculated “never” his (Again, life earlier, in the summer of 1983. from the context of the and an- swers, entirely it is not clear if defendant gave extraordinarily The victims con- prosecutor by knew what the meant the contradictory testimony fused and at trial. word.) J., respectively T. and were ten and six trial, at the time of were both inarticulate trial, Following the defense counsel appear transcript and from the to have produced for a moved an extremely by been intimidated the court- of a friend the affidavit victims’ mother result, setting. room As a the trial court that Mrs. H. which stated had told the permitted prosecutor the September to lead extensive- affiant in of 1984 she had ly, objection deliberately girls over the of defense counsel. “educated” her about sex testify, by having Hancock was Officer allowed to them watch sexual intercourse objection, аlso over defense her to out-of-court other activities between girls, her boyfriend. statements made to the some her The trial denied the granted proba- which tended to show that the offenses motion but a certificate of date, ground newly were committed on the or at cause ble based least at the residence. Sim- evidence. discovered ilarly, seventeen-year-old acquaintance Our review the record causes us to T. the victims was allowed to relate that unusually conclude that this was an diffi- had told her that the occurred “five prob- cult case on its facts. Because of the Ogden. or ten” times and in South court, experienced lems the victims examination,
Mrs. H. testified that defendant told her direct as well as the cross-ex- amination, the abuse exclusively had occurred “since” the sum- was conducted leading questions. Whereas there had occurred in the “summertime” and that victims, abused doubt defendant she was not in school Upon at the time. especially because admitted the abuse questioning about the occasion on which testimony, described it in his own we she showed Officer her Hаncock mother’s overwhelming find that there is doubt waterbed described it location of timing location of abu- about abuse, agreed T. suggest- when counsel sive incidents. illustrate the To lack ed that it was “the same bed” but “not the issue, substantial evidence on that sum- same bedroom” and a “different bedroom” problems marize some of numerous one in Bryan which had touched testimony: prosecutor her. When tried rehabili- six, J., aged As the first witness at tate by asking, that statement “When Di- trial, began her on direct exami- came, you ane took her into the bedroom nation, prosecutor repeatedly directed happened that this in?” she answered “no.” Bryan baby- her attention to “the last time changed T. also her to basically sat,” said, point “you and at one us told agree with either leading ques- counsel’s you Bryan babysat remembered when tions. time,” last testi- when witness H.’s testimony 3.Mrs. was the sol- fied that it in South She linking id evidence defendant’s admitted negative shook head when asked acts to a time after eighteenth birthday. if it was before if Halloween and She testified her “he’d “telling she remembered Diane it was at doing been since the summer was, by prosecutor’s Halloween.” J. *5 which me doing told that he still was it. description, “paralyzed” during own tri- problem, still That it was a that not he had al with fear and At one self-consciousness. done it then and not it done since.” She she point, said that it was “warm” just also said that “he that said he hadn’t babysat Bryan summertime the last time done it in several She months.” verified for her. She said that she didn’t know that had trying arrange been to evening her during where mother was speak to to her privately for a number of that of 14th and her mother had weeks, which was consistent with his testi- her it night told afterward that was the she mony that he confessed her on to the rec- gone to meeting had a church “fireside” of ommendation social worker. DFS awith friend. She said that the time” “last admitted, however, being Mrs. H. also to Bryan the incidents with at was by stunned defendant’s communications to and, Adams Avenue home a mo- few later, touching difficulty trying ments her and had to “assimi- “happened agreed both She essentially acknowledged late” them. She further ex- [at] [homes].” suggested whatever great either counsel periencing stress confusion as a through leading questions, thereby her revelations, creating possi- result of changing her dramatically with bility she that misheard or misunderstood questions. each successive round of specifics of defendant’s statement. possibility by That underscored the fact Likewise, T., aged ten, great 2. dif- had day the next she talked to Officer ficulty testifying. She said first that Stallings, completed contemporane- Bryan babysat Ogden. last time inwas report ous of his which states interview Later she said she didn’t it know whether hap- that the “mother didn’t when it know warm or anywhere near Halloween pened,” that he had testified at trial the last of place. when instance abuse took saying it oc- recollection her many asked times did When “how before this,” babysat curred the last time the defendant replied, do she “none.” [defendant] have page transcript one children. Because it would been On she said that significant him from touching Ogden did occur in information to not South and, next, touching only point investigating the crime of view fact, (significant, occurred once it place took agreed department jurisdic- South She that the incident even had whether Stallings tion), Officer was sure at revelations from strong. defendant was made a Again, that he would have note of all although such motivation is certain- concerning H. statements Mrs. location. ly in one whose understandable trust and report His recorded is un- “[Mrs. H.] affection defendant had been so terri- point sure this as to where the bly betrayed, reliability it does cloud the as she place, assault took lived at 2651 statements, her account of defendant’s es- 29th Adams and St.” He testified pecially police because the officers to him the that she abuse occurred never originally whom she described the commu- Ogden never any South identified nication did not corroborate her version. foregoing place except the two addresses Hancock, 4. The Officer to have likely where it was occurred: “If upon appeared rely which the trial happened Og- she told me South quite heavily in his determination of the my den for sure I have had it in would abuse, time of the last instance does not report.” in our justify view reliance. such Officer foregoing testimony of Officer Stall- acknowledged transcript Hancock that a ings, directly contradicts Mrs. H.’s insis- tape-recorded her interview with T. on Jan- “just tence at trial thаt defendant said he uary denied, that T. shows when it in hadn’t done several months” and later Hancock, specifically asked “He it happened said the last time was the “in happened had ever this house” babysat.” last time he Mrs. H. re- (the residence). Ogden fact, In Offi- counted the latter statement difficult acknowledged cer Hancock that the inter- cross-examination, during which she be- transcript view did not indicate where the counsel; quite came to defense hostile she events occurred. examination, did not on direct recount it appeared rely The trial court also during which she referred to the first large to a extent on the assessment statement above. described Nor did she that defendant’s “statement is cleansed so report Stallings, include it Officer far of things normal that the court does expected which would since have been de- Certainly, believe him.” we must defer fendant for the had cared children at least to the trial court matters of credibility, four to six times at ad- *6 significant arewe disturbed family dress and the had lived there six problems in the trial court’s assessment of months babysat the time defendant for First, appears credibility. it that the trial the last time. part court referred in to defendant’s testi- discrepancy This between Mrs. H.’s con- mony ejaculated that he had never in his temporaneous report day after her con- But, earlier, life. as we have noted versation testimony with defendant her exchanges transcript suggest in the that at trial defendant about what told her that unusually unsophisticated defendant was night question raises a serious about the terminology about appeared accuracy of her recollection at trial. Fur- “ejaculate” to understand the term when it thermore, displayed Mrs. H. considerable was first used. (albeit quite understandable) hostility to- ward defense defendant and counsel at tri- Second, although defendant admitted al and made it clear that she believed that only touching victims and not to T. had in definitively said earlier communi- him, making he respond them touch did in during cations that she abused peri- was a considerable detail with obvious candor od of time was Guy when she at H. Child on when asked cross-examination to de- School, elementary her school in Og- South scribe his serious sexual misconduct with den. Mrs. H. madе further it clear that judge’s them. This undercuts con- she believed T.’s statement was there- testimony clusion that defendant’s was fore T. convinced that had been in molested self-protective. motivation, October in Her South then, Third, transposing subsequently accepted trial court ac- a quired proffer back original information into the following on bishop and the DFS social worker relied L.D.S. conclusions in find- spoke he November of 1984 eighteen years with whom that defendant was old that told them that to the effect occasion his last abuse only had occurred in 1983. The (1) the abuse victims this case: Mrs. H. de- said it to admit the evidence when court refused fendant told her that the abuse occurred beginning was at the of defend- offered the last occasion he took chil- care ant’s under Rule Utah Rules case dren —“Not does she tell ... that to proper Evidence. That refusal was be- now, me told but she that the officers 804(b)(3), upon cause Rule which the de- early interpreted that it she to mean ad- relied, hearsay fense affects state- through (2) [sic]”; dresses and on the vic- “if the a ments declarant is unavailable as tims’ “first account to Officer Hancock witness,” at and defendant was available interpretable only that it occurred trial. The further indicated to de- Ogden at at that location and about that might fense counsel that the witnesses be (3) time”; no T.’s “[t]here’s point in testify allowed to at another description of the event to the seventeen- (presumably trial after defendant’s testimo- girl capable year-old that inter- testimony qualified if ny) their under Rule pretation that at least once correct statement the law. event, near the end of unexplained, are For reasons which the de- things”; and it involved at least those never fense re-called the witnesses. The (4) “I believe statement [defendant’s] State, however, argues ap- brief on its things cleansed so far of normal peal after he defendant testified that court does not believe him. The court had both of the told witnesses credibility deems at this time has be- abuse had not recurred since protective point come to the where his testi- challenge prosecutor did not that mony longer is no credible.” testimony; accepted truth of he de- report claim that such fendant’s suggests, As our earlier discussion Bishop been made to Bowen and Sindi accept we are unable to Under Noble. those circumstances there foregoing conclusions as reasonable. To Bishop was no need for Bowen Sindi problems have summarize the identified Noble rehabilitate defendant’s testimo- First, although did the evidence: Mrs. H. ny ques- because it was not called into testify trial that defendant told her he Consequently, tion. it is doubtful had abused the children the last time time, have, could at that absolutely babysat, there was been admitted under Rule 801. police when she that she Although point supports this day the State’s talked them the conversa position (but that the trial court committed no she had tion with defendant before *7 witnesses, information). excluding error in the it adds the heard childrens’ The evi problem considerably to the troublesome contrary, namely, to the entirely dence credibility. prose- If even Stallings gave two former that she Officer cutor of de- locations, acceded to the truthfulness likely but not the addresses fendant’s claim in the course of Ogden South address. Further current voluntary confession of serious misconduct more, testimony strong mo exhibited leader, subsequent- to an ecclesiastical de tivation to distort her recollection of ly representative, he agency spe- to a civil in statements order to ensure his fendant’s denied cifically any wrongdoing Second, system. conviction the adult 1984, it unlikely proposition makes conclusion, contrary the trial Mrs. H. the defendant would have told regarding Officer Hancock’s inter evidence later, story opposite a few weeks as she views with the children tends to show that claims he did. the abuse the children dеscribed occurred Third, Ogden, not in analysis To conclude our below, testimony seventeen-year-old ac decision-making process of the the tri- transcript ambigú- judge quaintance astonishingly al trial was shows so be, eliminating in our all reasonable that de- foundation as doubt
ous and without view, committed a crime totally It was not even fendant when he was unreliable. eighteen years emphasize for which the trial old. We that all definitive on the issue said, it, persons recog- of the in this court cited since witness involved case times, acknowledged that T. had told her thе nized and that defendant different only for the children on one occurred “before” move to cared occasion abuse move, Ogden, and “be- at their South residence after his “after” eighteenth birthday. Therefore, responses All of her the State fore and after.” were leading prove beyond suggestive questions, she had to a reasonable doubt charged the abuse unfamiliar with and/or unable to use on that most common of anatomical refer- date and at that location. While there is no even the occurred, ences, question that serious she met T. once and had a it, conversation her months after defendant admitted there is in our minds casual with case, charges filed in this and she a serious doubt that it was committed on were 14, 1984, acknowledged being Offi- October when defendant a close friend of was an Hancock’s, adult; therefore, “helped my me are left cer out we with defi- (a explained in and firm that the case” reference not nite conviction trial court all, United States v. United States record). erred. Taken all in we cannot see Co., any Gypsum deserving how her can be U.S. at 68 S.Ct. аt Further, weight. specifically we hold that such doubt is reasonable based on the evi- Finally, the issue of defendant’s dence at trial. credibility very troublesome. While we acknowledge judge's ability to as requires final matter brief dis One credibility, sess demeanor and we are un reversing Because are cussion. based he able to understand how dealt with the insufficiency of the evidence on the ele problems voluntary of defendant’s confes age ment of at the time of the defendant's strong sion and the likelihood that con offense, we do not rule on the tents of that confession were truthful. whether the trial abused his discre that defendant told State concedes denying tion the motion a new trial he truth at trial when he said had told his newly based on uncovered evidence. We bishop and his social worker that he had however, note, do that this is an unusual not abused the children since 1983. Even case, questions. many unanswered It if his confession were untrue in that re appears judge's major that one of the trial gard, explanation there is no whatsoever considerations his verdict was his total assertion, by for the denied defendant at in defendant’s lack confidence credibili trial, Mrs. H. that he told a few weeks ty. particular, likely In it seems later, in the course of a similar confession judge may have been influenced (and one recommended the social work that defendant made victims’ er), them in had abused October of penis they them stroke his and that saw result, 1984. As a it is in our unreasonable ages semen. That two children of their accept view to Mrs. H.’s assertion without things strongly sug could describe such some corroboration. Not is such cor them, gests exposed had been evidence, missing from the roboration denied touch whereas defendant both the say also the evidence of what she did ejaculation. and the The affidavit *8 police immediately talking after to defend counsel filed with his motion which defense ant tends to corroborate version of which, if for a new trial contained evidence what he told her. true, explain testimony would the of the leaving open possibility the Because the evidence the record victims while telling support does not trial court’s conclu that defendant was the truth about the sions, disagree possibly under we аre constrained to his actions. It could also pos them. We are mine the of Mrs. H. Those convinced the State very failed in shifted the this case to meet its burden of sibilities could well have concerning of entire balance the evidence lished as October 1984. The credibility. That defendant’s the trial finding is supported by the victims’ granted probable a of judge certificate mother, who testified that defendant told question suggests cause on that that he began her that the molestations in the sum- recognized possibilities. those While it is mer through of and continued the last true, аrgues appeal, as the State on babysat time he the children on October explanation the there was of reason the 1984. defense did not discover the evidence Although majority opinion recounts trial, time for the we nevertheless observe conflicting evidence in considerable de- opposition that the State’s to a trial in new tail, the mere fact that on the same evi- appears this case to us overzealous. The might dence this Court reach a different crime for which defendant was convicted justify result does not in setting it aside mandatory prison carries a minimum sen- judge’s findings. the trial years tence of life. If indeed I am the majority view that the of the defendant was sixteen the time misapplied Court has the clearly erroneous commission, its and we have determined standard of I review. affirm would the evidence raises reasonable doubt judgment and conviction. issue, resulting injustice on prosecuting system him the adult is ex- HOWE, J., dissenting concurs in the circumstances, treme. Under if we had HALL, opinion C.J. insufficiency not reversed because of the evidence, we would have reversed and ordered a new triаl basis of
evidence offered the defense. The is
Reversed. trial court ordered to appropriate
transfer this matter to the divi- juvenile dispo-
sion of the court for further according
sition to statute. MARCHANT, Karen Schumann STEWART, C.J., Associate Appellant, Plaintiff and J., ZIMMERMAN, concur. v. HALL, Chief (dissenting): Justice MARCHANT, Donald J. Defendant join I do reversing Court in Respondent. ground insufficiency conviction the evidence. No. 860250-CA. lacking in This is not a case evidence. Appeals Court of of Utah.
Rather, a case where the evidence is Sept. simply in In the conflict. face conflict- ing testimony, judge was called
upon credibility to assess wit- did, per- This he and I am not
nesses. findings
suaded that made were evidentiary adequate support
without clearly were otherwise erroneous. found that the offenses 14,1984,
were committed on a date eighteenth birthday. finding supported
That victims,
of both in detail the described
incident of sexual abuse that
day their mother went a function with
friend, being the date thereof later estab-