State v. Peraza , 2020 UT 48 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 48
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner
v.
ROBERT ALONZO PERAZA,
Respondent.
No. 20180487
Heard April 18, 2019
Filed July 15, 2020
On Certiorari to the Utah Court of Appeals
Fourth District, Provo
The Honorable Darold J. McDade
No. 131402387
Attorneys:
Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,
Salt Lake City, Randy M. Kennard II, Provo, for petitioner
Douglas J. Thompson, Provo, for respondent
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Robert Alonzo Peraza was convicted of four counts of
sodomy on a child. The court of appeals vacated those
convictions, concluding that the trial court committed two
reversible errors: allowing the State’s expert witness to testify in
violation of Utah Rule of Evidence 702 and denying Peraza’s
request for a continuance of the trial date.
STATE v. PERAZA
Opinion of the Court
¶2 The State petitioned for certiorari, arguing, among other
things, that the court of appeals erred by conflating the standards
and remedies under Utah Code section 77-17-13 (Expert Notice
Statute) and rule 702, and by placing the burden on the State to
prove that Peraza had not been prejudiced by the denial of his
motion for a continuance.
¶3 We conclude that the court of appeals did conflate the
requirements and remedies of the Expert Notice Statute and rule
702. We also hold that it erred in shifting the burden to the State to
disprove prejudice.
¶4 We therefore reverse the court of appeals’ holding that
the trial court erroneously admitted the expert witness testimony.
And we remand to the court of appeals to apply the correct
prejudice standard in relation to the trial court’s denial of Peraza’s
motion to continue and to address any remaining claims.
BACKGROUND
Sexual Abuse Allegations
¶5 A nine-year-old child told her mother and grandfather
that Peraza, the child’s stepfather, had been sexually abusing her.
The grandfather immediately contacted the police, who began
investigating the allegations. As part of the investigation, the child
was interviewed at the Children’s Justice Center (CJC). She
disclosed that Peraza began forcing her to perform oral sex on him
when she was six years old and that the abuse had continued until
recently. During the interview, the child described in graphic
detail the anatomy of male genitalia, the erectile and ejaculatory
process, the appearance of semen, and the physical motions of
masturbation.
¶6 Peraza was subsequently arrested and interviewed by the
police. He initially denied sexually abusing the child, stating that
he believed the child’s mother and grandfather had likely coached
her into making the allegations. Eventually, however, Peraza
acknowledged that there was at least one occasion where he had
been drunk and could have mistaken the child for his wife and
unwittingly forced her to perform oral sex on him. He then
admitted it could have happened “a few more times.”
¶7 In the period after Peraza’s arrest, the child recanted the
allegations to her mother and Peraza’s private investigator. But
the child later reaffirmed the earlier descriptions of abuse and
added additional allegations against Peraza and another
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Opinion of the Court
perpetrator. She explained that she had lied when she recanted
the abuse allegations because she did not want her family to be
separated.
¶8 The State ultimately charged Peraza with four counts of
sodomy on a child1 and one count of aggravated sexual abuse of a
child, all first-degree felonies. He pleaded not guilty to the
charges and requested a jury trial.
Pretrial Proceedings
¶9 Before trial, the State filed a notice of its intent to call the
child’s therapist from California as an expert witness to testify
“generally about the psychological symptoms, reactions, and
behaviors common in children that report having been abused
sexually, and that her observations of [the child’s] symptoms and
behavior are consistent with those of other children who report
sexual abuse.” The State’s notice indicated that the child’s
therapist “may also provide corroborative evidence to rebut any
defense claims of fabrication, coaching, etc.”
¶10 Peraza filed a motion to exclude the child’s therapist from
testifying. Specifically, Peraza argued that the description of the
therapist’s proposed testimony was vague and failed to provide
the defense with adequate information to meet that testimony. He
also argued that any testimony regarding “stereotypical”
reactions of children who report sexual abuse should be ruled
inadmissible because it is unreliable and prejudicial under Utah
Rule of Evidence 403. According to Peraza, “[t]he behaviors of
children that claim to have been sexually abused—not those
whose claims are actually proven or substantiated
independently—is not susceptible to quantitative analysis where
the children’s alleged underlying condition of being sexually
abused is uncertain.”2
1 Utah Code section 76-5-403.1(1) provides that a person
commits sodomy upon a child if he or she “engages in any sexual
act upon or with a child who is under the age of 14, involving the
genitals or anus of the actor or the child and the mouth or anus of
either person, regardless of the sex of either participant.”
2 In the introductory paragraph, Peraza indicated that his
motion to exclude was “based on Utah Code of Criminal
(Continued . . .)
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STATE v. PERAZA
Opinion of the Court
¶11 But before the trial court ruled on Peraza’s motion to
exclude, the State withdrew its notice for the child’s therapist.
Peraza then served the child’s therapist with a Utah subpoena, but
she stopped communicating with the defense when asked to
appear for trial. The State had intended to question the child’s
therapist as a defense witness. But as trial neared and Peraza had
not filed a notice of expert testimony, the State filed a notice of its
intent to call a different expert witness to rebut Peraza’s likely
defense that the child’s testimony should be disbelieved because
of her prior recantation and inconsistent statements.
¶12 The State filed this notice thirty-two days before trial.
The notice explained that the State planned to call a forensic
interviewer from the CJC to testify to “matters of specialized
knowledge and experience.” The State’s notice indicated that the
expert witness would testify to, “[t]he methodology and science
related to forensic interviewing of suspected child sex abuse
victims; science and research regarding child disclosures of sex
abuse including identified factors related [to] delayed, partial and
gradual disclosures and recantation.” The notice also included the
expert’s contact information, curriculum vitae, and an extensive
list of articles she would rely on for her testimony. Peraza did not
file a written motion to exclude this expert witness.
¶13 Twelve days before trial, the trial court held a hearing to
dispose of a number of outstanding matters. Relevant here, Peraza
orally moved for the first time to exclude the forensic interviewer
from testifying as an expert witness. Although he had not
submitted a written motion for this expert witness, Peraza asked
the trial court to apply the motion that he had previously filed
regarding the child’s therapist. The State then provided the trial
court with a hard copy of Peraza’s previous motion to exclude.
¶14 During the pretrial hearing, Peraza challenged the
adequacy of the State’s notice for the forensic interviewer, stating
that he “[did not] really know exactly what this expert would be
testifying to” and that he did not have access to the listed articles
because they required a subscription. He also argued that,
assuming the expert witness planned to testify about any
Procedure § 77-17-13 and Utah Rules of Evidence 702 and 403.”
However, he did not apply or analyze rule 702 in the body of the
motion.
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“statistical basis” for the nature of the child’s disclosures and
recantations, such testimony did not meet the threshold
requirements of rule 702 and was likely to prejudice the defense
because it could bolster the child’s credibility.
¶15 In response, the State argued that it intended to call the
expert witness only to rebut any argument from Peraza that the
child was not credible because her testimony had changed over
time and she had recanted the allegations on at least one occasion.
It then clarified that the expert witness would testify that children
might not “make a full disclosure initially, and that it’s a process,”
but that she would not opine as to whether the child here was
being truthful or not.
¶16 In addressing the oral motion, the trial court noted that it
“[did not] know what’s going to happen, because [it did not] have
testimony” and “[did not] know what people are going to say
until it actually gets done.” In addition, the trial court
acknowledged that it was unsure “whether or not [the expert
witness was] going to be needed.”3 Nevertheless, the court
determined that the State’s witness “would meet the criteria for
being an expert” under rule 702.
¶17 Peraza then argued that he still did not “have a thorough
enough written explanation of the expert’s proposed testimony,
sufficient to give [him] adequate notice to prepare and meet that
testimony, especially since [he did not] have . . . those studies.”
The State responded that the expert witness was “available . . . to
consult with [Peraza] . . . [to] answer any questions” and that it
was likewise unsure what testimony would be necessary from the
expert until it heard the defense’s evidence.
¶18 The trial court acknowledged that there was not “a
motion . . . pending with regard to this particular expert,” but that
it was “going to deny [the] motion at this point in time.” It stated
that “[f]or purposes of today, . . . [it was] going to deny [Peraza’s]
3 The trial court’s statement that it was unsure whether the
expert witness would be needed is likely referring to the State’s
explanation that the State planned to call the expert as a rebuttal
witness only if Peraza challenged the child’s credibility based on
her recantations or her partial, gradual, and delayed disclosures.
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motion.” But the court noted that it would consider objections and
“maybe this lady doesn’t come in.” The court then restated that
“looking at skill, experience, [and] education,” the witness met the
rule 702 requirements to be qualified to testify as an expert.
¶19 Peraza responded that he understood that the trial court
had ruled on his objection and indicated that he would submit a
written motion for this specific witness.4 The court agreed that “[it
would] like to have something there, and especially for [Peraza’s]
purposes, if something comes of it, [he would] need that for the
next level.”
¶20 Peraza then asked, “In light of the [court] . . . reserving
[on] the expert testifying or not,” whether he could “get an
electronic copy of all the reports that [the expert witness would
be] relying on as authority,” stating that “[w]ithout having access
to them, [he had] no means of effectively cross examining her.”
The court agreed and asked the State to pare down the list of
articles and provide Peraza with copies of the articles that the
expert would rely on for this case. The State indicated that it
would provide Peraza with the expert’s documents relating to
“the process of child disclosures.” In response, the trial court said,
“[I]f I get an objection at the trial on it, then it may not come in.”
¶21 Later that day, defense counsel requested an emergency
telephone conference to ask the trial court for another
continuance. During that conference, counsel stated that he had
begun preparing to meet the expected testimony of the forensic
interviewer after the trial court ruled that she was qualified to
testify as an expert witness for the State. In doing so, he consulted
with the Salt Lake Legal Defender’s director of mental health and
social work. During this discussion, counsel described for the
director some of the techniques used by the child’s therapist,
including having the child make and kill effigy dolls of Peraza
and another alleged perpetrator that the child had disclosed
during her therapy sessions. Counsel stated that, as a result of his
discussion with the director, he learned for the first time that this
therapy technique “could give grounds for the recantation of the
recantation, and also . . . might have led to the allegations
becoming much more violent and much more pronounced as the
4 A written motion to exclude the forensic interviewer was
never submitted.
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years have gone on.” Arguing that the “therapy may have led to
possible contamination of the [child’s] testimony,” counsel
requested a continuance to acquire his own expert witness to
review the child’s therapy records and determine whether they
may “give a foundation for the defense.” The State responded that
while it was “unhappy with . . . continuing again,” it
“underst[ood] the basis of what [Peraza was] asking for.”
¶22 The trial court denied the motion for a continuance,
stating that it believed Peraza could have discovered this
information previously. In addition, the court reasoned that the
trial had already been continued three times and that it had “to
draw the line somewhere.” It concluded by acknowledging that
“this might be something that could be used later” but indicated
that the trial should take place as scheduled because they had an
obligation to the alleged victim. The case proceeded to trial twelve
days later.
Trial
¶23 At trial, the State called the forensic interviewer to testify
as a rebuttal witness. Peraza objected, arguing that she was not a
proper rebuttal witness because evidence that the child had
recanted the sexual abuse allegations was presented in the State’s
case-in-chief, not the defense’s case. The trial court overruled the
objection and allowed the State to continue laying a foundation
for the expert witness. The State asked the expert witness about
her education, experience, specialized training, and the scientific
research supporting forensic interviewing techniques for children.
The expert testified that she had read research articles that were
peer reviewed to ensure that they are “accurate, and . . .
represent[ed] the field.”
¶24 The State then elicited testimony from the witness about
the research she had read relating to recantations and partial,
gradual, and delayed disclosures of allegations of child sex abuse.
Other than counsel’s initial objection that the expert was not a
proper rebuttal witness, counsel did not object to any of the
expert’s testimony.
¶25 Following a three-day trial, the jury convicted Peraza of
four counts of sodomy on a child and sentenced him to concurrent
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sentences of twenty-five years to life on each count.5 Peraza
appealed his convictions to the Utah Court of Appeals.
Court of Appeals’ Opinion
¶26 On appeal, Peraza made a number of arguments,
including that the trial court abused its discretion when it allowed
the expert witness to testify because the State had not provided
sufficient information for the court to determine whether the
testimony satisfied evidentiary rule 702. See State v. Peraza, 2018
UT App 68, ¶¶ 23, 25, 427 P.3d 276. Peraza also argued that he
had been prejudiced by the trial court’s denial of his request for a
continuance because he was unable to procure an expert witness.
See id. ¶¶ 24, 38.
¶27 The court of appeals concluded that the trial court erred
in admitting the expert’s testimony. Id. ¶¶ 2, 30, 32, 37, 49.
According to that court, because the State’s notice did not comply
with the Expert Notice Statute, the trial court was deprived of
“the information necessary to rule on the admissibility of Expert’s
testimony under rule 702.” Id. ¶ 2; see also id. ¶¶ 28, 31, 37, 49. It
concluded that this error was prejudicial. Id. ¶ 37.
¶28 The court of appeals also concluded that the trial court
abused its discretion in denying Peraza’s request for a
continuance. Id. ¶¶ 2, 38, 48. Its analysis relied on the Expert
Notice Statute, id. ¶ 39, which states that if the party seeking to
admit expert testimony “fails to substantially comply with the
requirements of this section, the opposing party shall, if necessary
to prevent substantial prejudice, be entitled to a continuance of
the trial or hearing sufficient to allow preparation to meet the
testimony,” UTAH CODE § 77-17-13(4)(a). The court concluded that
“the burden is on the State to persuade the court there is no
reasonable likelihood that, absent the error, the outcome would
have been more favorable to the defendant.” Peraza, 2018 UT App
68, ¶ 44 (citing State v. Tolano, 2001 UT App 37, ¶ 14, 19 P.3d 400).
And it concluded that the State had not met its burden. Id. ¶¶ 45–
47.
5 Before closing arguments, the State moved to dismiss the
charge of aggravated sexual abuse of a child, which the trial court
granted.
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¶29 Based on these two errors, the court of appeals vacated
Peraza’s convictions and remanded the case to the trial court for a
new trial. See id. ¶¶ 2, 49.
¶30 The State petitioned for certiorari, which we granted. We
exercise jurisdiction under Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶31 On certiorari, we review the court of appeals’ decision
for correctness. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d
1176.
ANALYSIS
¶32 The State asks us to reverse the court of appeals’ decision
vacating Peraza’s convictions. Specifically, we granted certiorari
to consider two issues: (1) whether the court of appeals erred in
vacating Peraza’s convictions based on its construction and
application of Utah Rule of Evidence 702 and the Expert Notice
Statute, and (2) whether the court of appeals erred in assigning
the State the burden to prove that Peraza was not prejudiced by
the trial court’s erroneous denial of his motion for a continuance.
We first address the court of appeals’ decision regarding the
expert witness.
I. EXPERT WITNESS TESTIMONY
¶33 The State first contends that, in determining that the trial
court abused its discretion when it allowed the expert witness to
testify, the court of appeals erroneously conflated the
requirements of Utah Rule of Evidence 702 and the Expert Notice
Statute.6 We agree that the court of appeals’ rule 702 analysis
relied in part upon unrelated notice requirements.
6 The correct standard of review for a trial court’s decision to
admit or exclude expert witness testimony is “abuse of
discretion.” The trial court “abuses its discretion when it admits
or excludes evidence under the wrong legal standard.” State v.
Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032 (citation omitted)
(internal quotation marks omitted). Whether it applied the correct
legal standard is a question of law reviewed for correctness. Id. If
the trial court did apply the correct legal standard, a reviewing
court will reverse its decision to admit or exclude expert
(Continued . . .)
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Opinion of the Court
¶34 The rules of evidence and the Expert Notice Statute have
distinct purposes, timing requirements, and remedies. These
differences are essential to understanding what a proponent of
expert witness testimony in a felony criminal case must do at
different stages of the litigation. Accordingly, we begin our
analysis by highlighting these distinctions.
¶35 When a party seeks to call an expert to testify at trial in a
felony criminal case, they must provide notice to the other party
in accordance with the Expert Notice Statute. See UTAH CODE
§ 77-17-13(1)(a). Under that statute, the proponent of the expert
testimony must “give notice to the opposing party as soon as
practicable but not less than 30 days before trial.” Id. The notice
must include the expert’s name, address, curriculum vitae, and
either a copy of the expert’s report or, if one does not exist, “a
written explanation of the expert’s proposed testimony sufficient
to give the opposing party adequate notice to prepare to meet the
testimony” along with “a notice that the expert is available to
cooperatively consult with the opposing party on reasonable
notice.” Id. § 77-17-13(1)(b).
¶36 The Expert Notice Statute prescribes two remedies if the
proponent of the testimony does not comply with its
requirements. First, if the proponent “fails to substantially comply
with [the Expert Notice Statute’s] requirements . . . , the opposing
party shall, if necessary to prevent substantial prejudice, be
entitled to a continuance of the trial or hearing sufficient to allow
preparation to meet the testimony.” Id. § 77-17-13(4)(a). Second,
“[t]he remedy of exclusion of the expert’s testimony will only
apply if the court finds that a party deliberately violated” the
provisions of the Statute. Id. § 77-17-13(4)(b).7 While not at issue
testimony only if the decision exceeds “the limits of
reasonability.” State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981
(citation omitted) (internal quotation marks omitted).
7 As the Expert Notice Statute establishes (1) a timing
requirement for providing notice of an expert witness and
(2) corresponding disclosure rules, it arguably treads into the
domain of the Utah Rules of Criminal Procedure. See UTAH R.
CRIM. P. 16 (governing discovery in a criminal case and
establishing sanctions for noncompliance). The Utah Constitution
charges this court with “adopt[ing] rules of procedure . . . to be
used in the courts of the state,” and it permits the legislature to
(Continued . . .)
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here, the Statute also states that a court “shall impose appropriate
sanctions” if it finds that the failure to comply is the result of bad
faith. Id.
¶37 The Expert Notice Statute’s focus is to enable a party to
prepare before trial for expert testimony offered by an opponent.
See id. § 77-17-13(1)(a)–(b). Accordingly, the proponent of the
expert testimony must comply with its requirements before trial.
See id. § 77-17-13(1)(a). The default remedy for noncompliance is a
continuance, but only if that noncompliance is “substantial[]” and
the continuance is “necessary to prevent substantial prejudice.” Id.
§ 77-17-13(4)(a). Exclusion of expert testimony is an available
remedy if the trial court finds that a party deliberately violated the
Expert Notice Statute. Id. § 77-17-13(4)(b).
¶38 In contrast, Utah Rule of Evidence 702 governs the
admissibility of evidence at trial. To be qualified as an expert
witness, an individual must possess “scientific, technical, or other
specialized knowledge [that] will help the trier of fact to
understand the evidence or to determine a fact in issue.” UTAH R.
EVID. 702(a). The proponent of the expert testimony has the
burden to make “a threshold showing that the principles or
methods that are underlying in the testimony (1) are reliable,
(2) are based upon sufficient facts or data, and (3) have been
reliably applied to the facts.” Id. 702(b). “The threshold showing
“amend the Rules of Procedure . . . adopted by the Supreme Court
upon a vote of two-thirds of all members of both houses.” UTAH
CONST. art. VIII, § 4. However, the Expert Notice Statute was not
enacted as an amendment to rule 16. Neither party has challenged
the constitutionality of the procedural provisions in the Expert
Notice Statute. But aside from any constitutional concerns, we
note the practical problems that arise when “litigants and courts
are faced with two sets of procedural rules running on parallel
tracks and are required to make judgment calls about which rule
should apply in a given circumstance.” State v. Bridgewaters, 2020
UT 32, ¶ 24 n.9, --- P.3d ---. As we recently observed, “[T]he
legislature could increase clarity for the bar and the bench if it
were to enact rule changes through joint resolutions that
specifically amend the relevant rule of procedure.” Id.
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. . . is satisfied if the underlying principles or methods . . . are
generally accepted by the relevant expert community.” Id. 702(c).
¶39 The Expert Notice Statute provides for the exclusion of
expert testimony only when a party deliberately violates the
Statute. Rule 702 provides for the exclusion of expert testimony
when its foundational requirements are not met. Rule 702 is not
concerned with notice. And nothing in rule 702 itself precludes
the proponent of expert testimony from making the necessary
threshold showing at trial, before the witness offers opinion
testimony.8
8 Of course, a party can move in limine before trial to obtain a
ruling on the admissibility of an expert’s testimony. And the
proponent must show that the expert’s evidence is admissible. A
court can choose to receive the information necessary to make
such a ruling in various ways, including, for example, by proffer,
during a pretrial evidentiary hearing, or (if the court defers its
ruling) through preliminary questioning of the witness at trial.
UTAH R. EVID. 104(a), (c). A court can rule on such a motion or
defer ruling—in part or in full—until it can be made in the context
of trial. UTAH R. CRIM. P. 12(e).
Here, Peraza made an oral motion to exclude the forensic
interviewer at the pretrial hearing. Based on the information
before it, the trial court concluded the expert was qualified under
rule 702, but deferred ruling on whether her substantive
testimony would be admitted. Notably, Peraza did not make a
substantive in limine motion specific to this expert witness. He did
file a written motion in limine before trial, but it related to the
child’s therapist. In that motion, Peraza’s focus was that the
expert’s testimony was inadmissible under Utah Rule of Evidence
403. And although Peraza asked the trial court at the pretrial
hearing to apply his written motion opposing the child’s therapist
to the forensic interviewer, there was a substantive difference
between the two witnesses. The State’s notice for the child’s
therapist indicated that she would testify that “[the child’s]
symptoms and behavior are consistent with those of other
children who report sexual abuse.” But its notice for the forensic
interviewer never stated that she would opine on the child’s
conduct. In fact, at trial, the forensic interviewer acknowledged
that she had never met or interviewed the child. At the pretrial
(Continued . . .)
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¶40 Here, the issue before the court of appeals was whether
the testimony of the expert witness was admissible under rule
702, not whether the State violated the Expert Notice Statute.
While Peraza did make an objection at the pretrial hearing under
the Statute, the trial court took measures to remedy Peraza’s
concerns. The trial court asked the State to pare down the number
of listed articles and provide them to Peraza. And the State agreed
to make its witness available to consult with Peraza and “answer
any questions.” And on appeal, Peraza has not challenged the trial
court’s handling of this objection. He has argued only that the trial
court should not have allowed the witness to testify under rule
702.
¶41 But we conclude the court of appeals conflated the
distinct requirements and remedies of the Expert Notice Statute
and rule 702 in its analysis. First, citing to the Expert Notice
Statute, the court of appeals stated that “[a] party that intends to
call an expert to testify at trial must demonstrate that the expert
meets the requirements of rule 702.” State v. Peraza, 2018 UT App
68, ¶ 28, 427 P.3d 276 (citing UTAH CODE § 77-17-13(1)(a)). While it
is true that a proponent must make a threshold showing under
rule 702, the court of appeals’ citation to the Expert Notice Statute
in support of this proposition was misplaced. Even though a
proponent of expert testimony must abide by both, compliance
with the Expert Notice Statute is not an element of admissibility
under rule 702.
¶42 Second, in several paragraphs throughout its decision,
the court of appeals specifically mentioned the Expert Notice
Statute when it concluded that the trial court abused its discretion
in admitting the expert’s testimony. See Peraza, 2018 UT App 68,
¶¶ 2, 28, 30–31, 37, 49. For example, it stated that “[t]he State’s
notice did not comply with section 77-17-13, depriving the court
of the information necessary to rule on the admissibility of
Expert’s testimony under rule 702.” Id. ¶ 2; see also id. ¶ 37 (“[T]he
district court exceeded its discretion in admitting Expert’s
testimony at trial because the State failed to comply with Utah
Code section 77-17-13 in that it did not provide an expert report or
detailed information with respect to Expert’s testimony or the
hearing, Peraza told the trial court he would submit a written
motion specific to the forensic interviewer, but he did not do so.
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scientific basis on which she would rely. Without this information
the requirements under rule 702 were not met . . . .”).
¶43 This commingling of the requirements and remedies of
the Expert Notice Statute and rule 702 was erroneous. While
expert testimony may be excluded under the Expert Notice
Statute if a party deliberately violates the Statute, there has been
no such finding in this case. Indeed, the State’s compliance with
the Expert Notice Statute was not an issue on appeal.
¶44 And while expert testimony will be excluded when rule
702’s foundational requirements are not met, the record shows
that before the State elicited the expert’s opinion at trial, it laid a
foundation to satisfy rule 702’s threshold requirements. During
the pretrial hearing at which Peraza initially objected to the
forensic interviewer testifying as an expert witness, the trial court
reviewed the witness’s “skill, experience, [and] education,” and
determined that she met the qualifications to testify as an expert
under rule 702(a). At that time, the court reserved on ruling
whether her substantive testimony would be admissible under
rule 702(b), stating that it was uncertain what the testimony
would be but that it would consider objections at trial.
¶45 At trial, the State called the forensic interviewer to testify
during its rebuttal. It laid a foundation regarding her education,
experience, and specialized training, which Peraza has never
challenged. Relevant here, the State also asked the forensic
interviewer whether the list of articles attached to her curriculum
vitae contained “areas [about which she] felt [her] training and
experience allowed [her] to testify as an expert.” Specifically, the
State asked whether she was qualified to testify to “[p]artial
gradual disclosure of sexual abuse, age and timing of disclosure,
reasons children delay disclosure, reasons children disclose,
reluctant disclosures and avoidant children in forensic interviews,
memory of traumatic events, difficulties with identifying dates of
abuse, among other things” as well as “sexual behavior in abused
and non-abused children, process of victimization, rapport, false
allegations, recantations, fantasy, [and] bizarre disclosures.” The
expert witness confirmed that she had read research articles on
those topics.
¶46 The State followed up, asking, “Are those things . . . that
you believe were generally accepted . . . within your field as being
sources that were reliable sources of research?” The witness
confirmed that the articles were published in peer-reviewed
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journals, which she explained meant that the peers within the
author’s academic community “review [the article] . . . to make
sure that it’s accurate, and that it’s something that they feel like
that they agree with, and that it represents the field.” Only after
laying this foundation did the State proceed to elicit expert
opinion testimony from the witness. Notably, Peraza did not
object under rule 702(b) to the substance of the witness’s
testimony at any time during trial.
¶47 The court of appeals appears not to have considered this
trial testimony in its 702 analysis. It looked only to the information
in the State’s pretrial notice. And it concluded that the notice did
not contain enough information to meet the threshold
requirements of rule 702, so the State had violated the Expert
Notice Statute and the trial court exceeded its discretion in
admitting the testimony.
¶48 Peraza argues that this was not a conflation of the Expert
Notice Statute and rule 702, and that it was proper to consider
only the information in the State’s pretrial notice in assessing the
admissibility of the expert’s testimony. Peraza argues that the trial
court made a definitive ruling to admit the expert at the pretrial
hearing, and at that time it had only the State’s notice before it. So
the trial court’s ruling was predicated only on that information,
and this is why the court of appeals referenced the expert notice
requirements in connection with its 702 analysis. Peraza argues
that it was an abuse of discretion for the trial court to admit the
expert based on the information it had before it at the pretrial
conference.
¶49 But the factual premise of Peraza’s argument is incorrect.
While the trial court did conclude at the pretrial hearing that the
expert was qualified under rule 702(a) based on her curriculum
vitae, it reserved its ruling on the helpfulness and reliability of her
substantive testimony under rules 702(a) and (b). At the pretrial
hearing, the State explained that it did not know what the
substance of the expert’s testimony would be, because she would
be called only as a rebuttal witness. Both parties recognized that
the court was reserving on that issue. The State noted that it
would not lose any money on travel expenses if the court was
“going to reserve on that” because the expert was local. Peraza
asked whether he could at least “get an electronic copy of all the
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STATE v. PERAZA
Opinion of the Court
reports that [the expert would be] relying on as authority” “[i]n
light of the [court] . . . reserving [on] the expert testifying or not.”
¶50 At trial, the witness did not offer an opinion until after
the State had elicited answers to preliminary questions sufficient
to satisfy rule 702’s threshold requirements. And Peraza raised no
objection on that basis. Viewing the forensic interviewer’s
testimony in context, it was admissible under rule 702. The court
of appeals incorrectly imported the requirements of the Expert
Notice Statute into its 702 analysis.
II. MOTION FOR A CONTINUANCE
¶51 The court of appeals held that the trial court erred when
it denied Peraza’s motion for a continuance. The court of appeals
premised its analysis on a conclusion that Peraza had requested
the continuance pursuant to the Expert Notice Statute. Based on
that conclusion, it shifted the burden to the State to prove that
Peraza was not prejudiced by the erroneous denial. The State does
not contest the court of appeals’ determination that the denial of
the continuance was error, but it argues that the court of appeals
erred in requiring the State to disprove prejudice. We agree.
¶52 The court of appeals’ analysis on this point was based on
the premise that the State violated the Expert Notice Statute, and
that Peraza requested the continuance pursuant to that statute. As
discussed above, the court of appeals concluded in its assessment
of Peraza’s rule 702 argument that the State violated the Expert
Notice Statute. State v. Peraza, 2018 UT App 68, ¶¶ 31, 37, 49, 427
P.3d 276; see supra ¶¶ 40–50. And in analyzing Peraza’s argument
that the trial court erred in denying his motion for a continuance,
the court of appeals presumed that Peraza requested the
continuance as a result of the State’s violation. Id. ¶ 45.
¶53 After determining that the trial court’s denial of Peraza’s
request was erroneous, the court of appeals required the State to
prove that Peraza had not been prejudiced by the error. Id. ¶¶ 44–
48. In cases involving a violation of the Expert Notice Statute, the
court of appeals has shifted the burden to the State to prove that
the defendant was not prejudiced. The court of appeals’ cases
reference our rationale in State v. Knight. 734 P.2d 913, 921 (Utah
1987). In Knight, the prosecution violated its discovery duty by
failing to turn over certain inculpatory evidence. See id. at 914–16.
We recognized that “when . . . the error consists of the
prosecution’s failure to provide a defendant with inculpatory
evidence, the record does not provide much assistance in
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Opinion of the Court
discovering the nature or magnitude of the resulting prejudice to
the defense.” Id. at 920. Accordingly, we held that “[b]ecause of
the difficulties posed by the record’s silence in cases involving a
wrongful failure to disclose inculpatory evidence, it seems
appropriate in such instances to place the burden on the State to
persuade a court that the error did not unfairly prejudice the
defense.” Id. at 921. The defendant must only “make a credible
argument that the prosecutor’s errors have impaired the defense.”
Id. Then “it is up to the State to persuade the court that there is no
reasonable likelihood that absent the error, the outcome of the
trial would have been more favorable for the defendant.” Id.
¶54 The court of appeals has extended this holding to cases
in which the state has violated the Expert Notice Statute. See State
v. Arellano, 964 P.2d 1167, 1171 (Utah Ct. App. 1998); see also State
v. Tolano, 2001 UT App 37, ¶¶ 14–15, 19 P.3d 400. And it applied
this precedent here to require the State to prove Peraza was not
prejudiced by the trial court’s erroneous denial of his request for a
continuance. Peraza, 2018 UT App 68, ¶¶ 44–48. We conclude this
was error for two reasons.
¶55 First, Peraza acknowledges that he has not argued on
appeal that his request for a continuance was based on the Expert
Notice Statute. Accordingly, Peraza has waived any such
argument.
¶56 Second, we find the position Peraza has taken on appeal
to be consistent with the trial record. The record reflects that
Peraza did not request the continuance under the Expert Notice
Statute. Rather, he asked for a continuance to secure his own
expert witness to discuss the potential impact of the child’s
therapy on her statements and testimony. During the emergency
telephone conference, counsel for Peraza stated that, as a result of
his discussion with the Salt Lake Legal Defender’s director of
mental health and social work, he learned for the first time that
the therapy techniques the child’s therapist had used “could give
grounds for the recantation of the recantation, and also . . . might
have led to the allegations becoming much more violent and
much more pronounced as the years have gone on” and “may
have led to possible contamination of the [child’s] testimony.”
Counsel requested the continuance to acquire his own expert
witness to review the child’s therapy records and determine
whether they may “give a foundation for the defense.” Counsel
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STATE v. PERAZA
Opinion of the Court
did not invoke the Expert Notice Statute or argue that he needed
more time to prepare for the State’s expert.
¶57 Accordingly, the court of appeals erred when it applied
its precedent involving the Expert Notice Statute to assess
whether Peraza was prejudiced by the denial of the continuance.9
The Expert Notice Statute was not in play.
¶58 In general, when a party unsuccessfully requests a
continuance to procure a witness, based not on a particular statute
or rule but pursuant to the court’s inherent authority to manage
the case, the movant must prove prejudice on appeal. See Mackin
v. State, 2016 UT 47, ¶¶ 33–34, 37, 387 P.3d 986. We will not
reverse the trial court’s decision to grant or deny a continuance
“absent a clear abuse of that discretion.” Id. ¶ 33 (citation
omitted). A trial court “abuses its discretion when it denies a
continuance and the resulting prejudice affects the substantial
rights of the defendant, such that a review of the record persuades
the court that without the error there was a reasonable likelihood
9 The State argues that the court of appeals’ extension of our
holding in Knight to cases involving the Expert Notice Statute is
contrary to the language of the Statute. See State v. Arellano, 964
P.2d 1167, 1171 (Utah Ct. App. 1998). We need not resolve this
argument here because we have concluded that Peraza did not
request the continuance under the Expert Notice Statute. But we
acknowledge some of the problems the State highlights. The
Statute states in relevant part that, “[i]f the defendant or the
prosecution fails to substantially comply with the requirements of
this section, the opposing party shall, if necessary to prevent
substantial prejudice, be entitled to a continuance of the trial or
hearing sufficient to allow preparation to meet the testimony.”
UTAH CODE § 77-17-13(4)(a). We have stated that “the if clause
expresses a condition.” State v. Wadsworth, 2017 UT 20, ¶¶ 5, 5 n.4,
393 P.3d 338. Consequently, the moving party bears the burden of
showing that the condition is met. With respect to the Expert
Notice Statute, that means showing both that the proponent of the
expert testimony has failed to substantially comply with the
Statute, and that a continuance of the trial is “necessary to prevent
substantial prejudice.” To shift the burden of proving prejudice to
the proponent of the testimony, at the trial level or on appeal, may
arguably run counter to the language of the statute.
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Opinion of the Court
of a more favorable result for the defendant.” Id. (citation omitted)
(internal quotation marks omitted).
¶59 When a defendant moves for a continuance under the
common law, it is the defendant’s burden to prove that a denial of
the motion would be prejudicial. See id. Here, it was Peraza’s
burden to prove prejudice.
¶60 Accordingly, we reverse the court of appeals’ ruling and
remand for that court to consider under the correct legal standard
whether the trial court’s erroneous denial prejudiced Peraza.10
III. INEFFECTIVE ASSISTANCE OF COUNSEL
¶61 Peraza also argues that his counsel was ineffective.
Recognizing that the record is insufficient to make this
determination, he asks us to remand to the trial court under Utah
Rule of Appellate Procedure 23B. However, we did not grant
certiorari on this question. And while we can affirm on alternative
grounds that are apparent on the record, the basis for this relief is
not apparent on the record. Further, we must remand to the court
of appeals on other remaining issues. Accordingly, we decline to
address whether counsel was ineffective and leave that
determination to the court of appeals on remand.
CONCLUSION
¶62 We conclude that the court of appeals’ rule 702 analysis
was erroneous. The State’s expert testimony was admissible.
Further, the court of appeals erred in requiring the State to prove
that Peraza was not prejudiced by the trial court’s denial of his
motion for a continuance.
¶63 We reverse the court of appeals’ decision with regard to
the expert witness. And we remand to the court of appeals to
determine whether Peraza established that he was prejudiced by
the trial court’s denial of his motion for a continuance and address
any other remaining claims.
10 We remand this issue back to the court of appeals in
response to the parties’ request that we do so.
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