Memorandum Decision
{1 Defendant Ronnie R. Wells was charged with eight counts of aggravated sexual abuse of a child and four counts of lewdness involving a child, all arising from alleged incidents that occurred during the summer of 2011. The eight-year-old victim (Child), her older brother, and their little sister stayed with Wells and his wife (Grandmother) for a month that summer.
2 Sometime later during her stay, Child again asked to speak with Grandmother. This time she reported that while she had been playing truth or dare with Wells, he tickled her belly and legs, and also tickled her between her legs. Grandmother talked to Wells about this incident and also contacted the police.
13 Child subsequently claimed other instances of Wells exposing himself and of inappropriate touching. She testified at trial that on several occasions Wells had rubbed her vagina while watching movies, sometimes under her underwear and sometimes over it. She also testified that Wells had had her rub his penis multiple times and that he touched her inside her vagina several times. Additionally, she alleged that when Wells was carrying her to her bed, after he would "go past the wall [where the bathroom is]," he would then start rubbing her vagina. Child further alleged that the instances where she saw Wells expose himself while she was hanging in the air happened fifteen to twenty times that summer.
T4 The jury found Child's testimony convincing and ultimately convicted Wells on each of the twelve counts. After sentencing, Wells timely appealed. '
15 Wells challenges the sufficiency of the evidence to support his convictions. "As a general rule, claims not raised before the trial court may not be raised on appeal.... [This] preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that 'exceptional cirenmstances' exist or 'plain error occurred." State v. Holgate,
T6 Wells also argues that his trial counsel was ineffective for failing to file a
17 To determine whether filing a motion to arrest judgment would have been futile, we evaluate whether the evidence presented at trial was so questionable that such a motion would have caused the trial court to reverse the jury verdiet. "[The court may only reverse a jury verdict when 'the evidence is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that the defendant committed the erime for which he or she was convicted." State v. Robbins,
18 Wells argues that due to Child's inherently improbable testimony there was insufficient evidence to support the verdict. "Though the court must ordinarily accept the jury's determination of witness credibility, when the witness's testimony is inherently improbable, the court may choose to disregard it." Id. 116. However, such circumstances are quite limited, in that the trial court may "reevaluate the jury's eredi-bility determinations only in those instances where (1) there are material inconsistencies in the testimony and (2) there is no other cireumstantial or direct evidence of the defendant's guilt." Id. 119. We address each of these requirements.
T9 First, it does not appear that there are material inconsistencies in Child's testimony. Wells argues that Child's trial testimony and her original reports to Grandmother were inconsistent, Although Child's trial testimony alleged additional instances of abuse as compared to her initial reports to Grandmother, it does not appear that the separate disclosures were actually inconsistent. The only specific inconsistency between them that Wells asserts is that Grandmother questioned Child as to whether Wells touched her under her clothing and she responded that he had not, yet at trial Child testified of instances of touching under her clothing. However, reading the statement in context, it is clear that Child's response to Grandmother was limited to the specific truth-or-dare incident and was not a broad assertion that Wells had never touched her under her clothing. And the simple fact that Child alleged additional abuse later does not make Child's testimony inherently improbable. Indeed, at Wells's sentencing hearing,
The initial disclosure was basically what Mr. Wells acknowledged on the stand, and then [Child] made much larger disclosures when she was interviewed. That doesn't necessarily mean she wasn't telling the truth,. It might have been she was floating the idea first to see whether she'd get some support, and once she did she decided she'd tell the whole story. !4 !
Thus, notwithstanding the differences between the reports, Child's multiple disclosures were not inconsistent, but merely cumulative, and simply added more details in the later statements.
T10 Wells also argues that there were inconsistencies within Child's trial testimony as to the number of times abuse occurred and that it was improbable that he could have abused Child so frequently without Grandmother witnessing it. Child was indeed sometimes inconsistent when identifying the exact number of times certain acts happened, describing fewer incidents when first examined and then describing slightly more incidents on eross-examination. However, "it is not unusual that a child's testimony be somewhat inconsistent, especially in sexual abuse cases." State v. Virgin,
{11 Nor does the alleged frequency of abuse make Child's testimony inherently improbable. Wells argues that if we were to believe that all of the incidents alleged occurred and were not observed by others, that would mean "an incident of aggravated sexual assault ... occurred, on average, multiple times each day" over the one-month period. However, considering that the abuse was alleged to have lasted only a few minutes each time and that it usually occurred either under a blanket while others in the room were watching a movie or after passing "the wall" as Wells was putting Child to bed, this could adequately explain the fact that Grandmother never witnessed the abuse. Further, even if the jury was not confident of Child's ability to remember the exact number of times the abuse occurred, the jury could have reasonably determined from the remainder of the testimony-where specific instances were discussed, including supporting details
112 Wells also argues that Child's testimony is inherently improbable because she "never demonstrated much emotion" and "fabricated a story about keeping track on a notebook" of the times the abuse happened. Wells makes his judgments regarding Child's lack of emotion from a few phrases in her testimony, such as her de-seriptions of being "kinda shocked" and feeling "kinda bad," "kind of uncomfortable," and "not too good." However, the trial judge remarked at sentencing that Child "sounded like she was talking about something that really happened," and the jury could have easily arrived at the same conclusion. Reading witnesses' demeanor is a task best left to those actually hearing the testimony, and we cannot reliably glean such information from a cold record. See Henshaw v. Henshaw, 2012
113 Second, there were multiple pieces of evidence in addition to Child's testimony that corroborated her allegations of abuse. Child's brother testified that when 'they were watching a movie and Wells and Child were under the blanket, he would see "a bump in the blanket" that he thought was Wells's hand moving toward Child. Child's brother also testified that Child had told him that Wells was touching her inappropriately. Also, Wells himself admitted to two of the incidents, although he claimed that they were accidental. Because there is other evidence beyond Child's testimony that supports Wells's guilt, the trial court would be precluded from providing relief under the inherently improbable testimony theory. Id. T19 ("The existence of any additional evidence supporting the verdict prevents the judge from reconsidering the witness's eredibility.").
114 In sum, "the court may choose to exercise its discretion to disregard inconsistent witness testimony only when the court is convinced that the credibility of the witness is so weak that no reasonable jury could find the defendant guilty beyond a reasonable doubt." Id. €18. This standard has not been met here, and the trial court could not have disregarded Child's testimony even had trial counsel petitioned for such in a motion to arrest judgment. Therefore, the filing of such a motion would have been futile, and Wells's counsel was not ineffective in this regard. Consequently, we affirm.
Notes
. Although referred to by the children as their grandparents, neither Wells nor Grandmother is a biological grandparent of Child.
. Counsel for Wells in this appeal also served as trial counsel. Some Utah cases have declared that trial counsel should not act as counsel on a direct appeal that asserts ineffective assistance of counsel. See State v. Litherland,
. - Wells argues that the trial court's statements at sentencing constituted "uncharacteristic( ]" "reservations and concerns about the jury verdict." We do not agree with that description of the statements, especially given the excerpt of those remarks we have included.
. Wells argues that it is improbable that Child did not remember the details of what she and Wells were wearing or what movie they were watching when she was first touched under the blanket. However, Child remembered that she was wearing pajama pants and she remembered other details from the episode, such as where each person in the room was seated while watching the movie. Also, when discussing other episodes of abuse, Child remembered what Wells was wearing and some of the specific movies they were watching.