State v. Allgood ( 2017 )

2017 UT App 92THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ANTHONY TODD ALLGOOD,
Appellant.
Opinion
No. 20150369-CA
Filed June 8, 2017
Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 131700297
Nathan K. Phelps, Attorney for Appellant
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
TOOMEY, Judge:
¶1 Anthony Todd Allgood appeals his convictions for
aggravated sexual abuse of a child, forcible sodomy, rape, and
forcible sexual abuse. Allgood asks us to vacate his convictions,
arguing they rest on false testimony and that he received
ineffective assistance of counsel. We affirm.
BACKGROUND
¶2 “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal
quotation marks omitted). “We present conflicting evidence only
as necessary to understand issues raised on appeal.” Id.State v. Allgood
¶3 Allgood was charged with several felonies based on his
sexual abuse of his stepdaughter (Victim). After a jury trial,
Allgood was convicted of aggravated sexual abuse of a child,
forcible sodomy, two counts of rape, and three counts of forcible
sexual abuse.
The Abuse
¶4 Allgood began sexually abusing Victim when she was
about eight or nine years old and continued to do so until she
was seventeen years old. The abuse began with fondling but
eventually escalated to oral and vaginal sex. Nearly all of the
abuse occurred in Victim’s bedroom under the guise of Allgood
tucking her into bed for the night, even during Victim’s teenage
years. Although Victim suffered years of abuse, she was afraid to
report it because her mother (Mother) loved and trusted Allgood
and the family relied on his income.
¶5 Eventually Mother, Victim’s brother (J.S.), and J.S.’s
girlfriend (A.S.) grew suspicious of Allgood’s behavior toward
Victim. For example, Allgood spent considerable time tucking
Victim into bed—sometimes up to two hours—often locking her
bedroom door behind him. When confronted by Mother or J.S.
about spending so much time in Victim’s room, Allgood usually
responded that he had fallen asleep, that Victim had fallen
asleep on his arm, or that they had just been talking. In addition,
Allgood often cuddled with Victim while they watched movies
and held her hand while they walked or drove in the car.
¶6 In September 2010, Victim started dating a boy
(Boyfriend). A.S. testified at trial that Allgood was jealous of
Boyfriend’s relationship with Victim and would not let them
have much time to themselves “like a boyfriend and girlfriend
would have.” Mother testified that when Allgood saw them
kissing, “you could just see the steam come off him.”
¶7 After finding Victim’s bedroom door locked one night
while Allgood was tucking her in, Mother “banged on the door”
and confronted Allgood. Mother asked him if he loved Victim
20150369-CA 2 2017 UT App 92State v. Allgood
“in a way that [he] shouldn’t.” Allgood assured Mother that
nothing was going on and claimed she was “just being
irrational.” On several occasions Mother accused Allgood of
behaving inappropriately with Victim. Allgood usually
responded by asking, “Why would I do that? I love you.”
Despite Mother’s suspicions, Allgood’s explanations and
reassurances kept her from contacting the police until much
later.
¶8 On another occasion, while Victim was practicing driving
with Allgood late at night,1 Allgood “reached over and started
groping [her] breasts, and that’s when a cop pulled [them] over.”
The officer separated the two and put Victim in his police cruiser
because he observed them in a “compromising position.”
“[F]rozen with fear,” Victim told the officer that Allgood was
teaching her how to drive and that nothing else was going on.
The officer called Mother and explained he had pulled over
Victim and Allgood and that the situation did not “feel right.”
Mother asked to speak with Victim and was allowed to, but
Victim reiterated that she was just out practicing driving.
Despite his reservations, the officer let the two drive home.
¶9 Instead of questioning Allgood about the incident, Mother
called Allgood’s brother. She told him what had happened and
explained that the officer felt something “suspicious [was] going
on.” Although Mother was concerned, she asked him to talk to
Allgood because she had already accused Allgood of
inappropriate behavior and she did not want to be accused again
of being irrational.
¶10 After ten years of being sexually abused, Victim told her
best friend (C.M.) that Allgood was abusing her. Although C.M.
believed Victim was telling the truth, she did not report the
1. At this point, Victim had a permit to drive and was in the
process of completing the required number of hours of driving
time to obtain a driver license.
20150369-CA 3 2017 UT App 92State v. Allgood
abuse because she was shocked by the news and did not know
what to do. About a month later, Victim told A.S. about it.
Victim was helping A.S. with a paper route when “out of
nowhere [she] started crying” and disclosed the abuse. A.S. tried
to calm her down and urged her “to tell someone” else about it.
But Victim kept saying that she was afraid to report Allgood
because she feared that her “family life would be completely
disrupted” if she did. A.S. told Victim to report Allgood or she
would do it herself.
¶11 A few months later, Victim attempted to run away from
home. When Mother was alerted to Victim’s preparations, she
confronted Victim and asked what she was doing. Victim
answered, “‘I can’t take it anymore . . . I can’t take him
anymore.’” Confused and thinking that Victim may have been
referring to her biological father, Mother asked, “‘Who are you
arguing with?’” Victim answered, “‘[Allgood] is sleeping in my
bed . . . [he] is having sex with me.’” After taking a moment to
process this news, Mother called the police and reported the
abuse.
¶12 While Mother and Victim waited for the police to arrive,
Victim showed Mother a text message Allgood had sent earlier
that day about how he was excited to be with her and to tuck her
in that night.2 Mother saw that the message came from Allgood’s
instant messenger account. She took Victim’s phone and replied
to Allgood’s message, asking, “‘What do you have planned for
our time tonight?’” Allgood answered, “‘Well, I’ve never had to
explain myself before.’” At that point the police arrived and the
conversation ended.
2. The exact language of Allgood’s message is unclear from the
record. Although the detective assigned to the case took
photographs of the message from Victim’s phone, he
inadvertently deleted them sometime before trial. See infra ¶ 15.
20150369-CA 4 2017 UT App 92State v. Allgood
The Trial
¶13 A number of things occurred at trial that are relevant to
this appeal. Before voir dire, the parties and the trial court
discussed several issues in chambers. The parties noted that they
had agreed not to introduce DNA evidence during trial. In
addition, defense counsel3 agreed not to ask Victim any
questions about her sexual activity with Boyfriend so long as the
State would not argue Victim became sexually active as a result
of Allgood’s abuse. Neither party breached either of these
agreements.
¶14 Another important subject at trial was the message
Allgood sent Victim on the day Victim told Mother that she had
been abused. On direct examination, the State asked Victim,
“What was he instant messaging you about?” Victim answered,
“How he wanted to spend time with me and how he was excited
to come tuck me in, and that he wanted to have sex with me.”
On cross-examination, defense counsel inquired about the
message and asked Victim if the detective on the case took a
photo of it. Victim responded that he did. The following
exchange between defense counsel and Victim ensued:
Q. Tell me what that text said again, if you
would.
A. He was excited to come home and spend
time with me and tuck me in.
Q. I heard more yesterday.
A. That he wanted me.
On redirect, the State asked Victim, “So what did that mean to
you when he said he wanted you?” Victim answered, “That he
3. Allgood was represented by two attorneys at trial.
20150369-CA 5 2017 UT App 92State v. Allgood
wanted to have sex with me.” Mother later testified that in her
recollection, Allgood’s message read, “I can’t wait for our time
tonight.” On cross-examination, Mother testified she could not
remember whether Allgood’s message read “our time,” or “our
special time,” but she believed the message implied he wanted
to be with Victim sexually. She added, “It was not written
appropriate for a daddy to write a child. It was something that
he should have been writing to me.” For this reason, Mother
took Victim’s phone and responded, asking Allgood what he
planned to do with Victim during their time.
¶15 The detective also testified about Allgood’s message. He
explained that he took photographs of the message, but he
inadvertently deleted them from the camera’s memory card and
was unable to retrieve them. On cross-examination, defense
counsel asked the detective if the message included the words
“‘I want to have sex with you.’” The detective testified he did
not remember seeing a text with that specific language. He
further testified that if he had seen such language, he would
have considered it significant and noted it in his report, but he
had made no such note in his report.
¶16 Mother’s testimony about the phone call she received
from the police officer who pulled over Victim and Allgood is
another point of contention on appeal. On direct examination,
the prosecutor asked Mother what the officer told her. Without
any objection from defense counsel, she answered that the officer
told her that he had stopped Victim and Allgood, that he had
some concerns about what they were doing, that Victim had told
him Allgood was teaching her to drive, and that the situation did
not feel right. Mother also testified she had asked the officer to
pass the phone to Victim and Victim had told her she was just
practicing driving with Allgood.
¶17 The jury convicted Allgood of aggravated sexual abuse of
a child, forcible sodomy, two counts of rape, and three counts of
forcible sexual abuse. Allgood appeals.
20150369-CA 6 2017 UT App 92State v. Allgood
ISSUES AND STANDARDS OF REVIEW
¶18 Allgood raises three unpreserved issues on appeal. First,
he contends the State knowingly elicited false testimony at trial.
Although Allgood concedes he failed to preserve this issue
below, he asserts three separate grounds for appellate review:
plain error, ineffective assistance of counsel, and exceptional
circumstances. Second, Allgood contends his trial counsel
performed ineffectively by agreeing not to question Victim about
her sexual relationship with Boyfriend on the condition that the
State would not argue she became sexually active as a result of
Allgood’s abuse. Third, Allgood contends his counsel similarly
performed ineffectively by failing to object to the admissibility of
alleged hearsay testimony at trial.
¶19 “Appellate courts generally will not consider an issue
raised for the first time on appeal absent plain error, exceptional
circumstances, or ineffective assistance of counsel.” State v.
Burnside, 2016 UT App 224, ¶ 19, 387 P.3d 570 (citation and
internal quotation marks omitted).
¶20 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for
the appellant.” State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276(citation and internal quotation marks omitted).
¶21 “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 this court must decide whether the defendant was
deprived of effective assistance as a matter of law.” State v. Scott,
2017 UT App 74, ¶ 18. To prevail on a claim of ineffective
assistance of counsel, the appellant “must show that counsel’s
performance was deficient” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). We note that the harmfulness element under the plain
20150369-CA 7 2017 UT App 92State v. Allgood
error test “is equivalent” to the prejudice element under the
ineffective assistance of counsel test. Dean, 2004 UT 63, ¶ 22.
¶22 “The exceptional circumstances concept serves as a safety
device, to assure that manifest injustice does not result from the
failure to consider an issue on appeal.” State v. Irwin, 924 P.2d 5,
8 (Utah Ct. App. 1996) (citation and internal quotation marks
omitted). “Exceptional circumstances is a doctrine that applies to
rare procedural anomalies.” In re adoption of K.A.S., 2016 UT 55,
¶ 19, 390 P.3d 278 (citation and internal quotation marks
omitted). “We apply this exception sparingly, reserving it for the
most unusual circumstances where our failure to consider an
issue that was not properly preserved for appeal would have
resulted in manifest injustice.” Id. (citation and internal
quotation marks omitted).
ANALYSIS
I. Prosecutorial Misconduct
¶23 Allgood argues the State knowingly elicited false
testimony at trial, or failed to correct it, when Victim and Mother
described a message Allgood sent Victim. Allgood did not
preserve this argument but argues his convictions should be
vacated on the following grounds: it was plain error for the trial
court to allow the jury to consider the alleged false testimony,
defense counsel performed ineffectively by failing to “move the
court to correct the problem,” and exceptional circumstances
justify vacating the convictions.4
4. The State contends Allgood’s argument on this issue is
inadequately briefed. While it is a close call and Allgood’s brief
is lacking in analysis, authority, and organization, we reach the
merits of Allgood’s claim. Although the deficiencies in the
briefing are not so great that we would deem the issue
(continued…)
20150369-CA 8 2017 UT App 92State v. Allgood
¶24 Prosecutorial misconduct occurs where “the actions or
remarks of the prosecutor call to the attention of the jury a
matter it would not be justified in considering,” and is reversible
error where “the error is substantial and prejudicial such that
there is a reasonable likelihood that, in its absence, there would
have been a more favorable result.” State v. Basta, 966 P.2d 260,
268 (Utah Ct. App. 1998) (brackets, citation, and internal
quotation marks omitted). “When a prosecutor is aware that
testimony is false, he or she has a duty to correct the false
impression; failure to do so requires reversal if there is any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.” See Mulder v. State, 2016 UT
App 207, ¶ 28, 385 P.3d 708 (brackets, citation, and internal
quotation marks omitted). But inconsistencies in a witness’s
testimony alone do not prove the testimony was false much less
support the assertion that the prosecutor knowingly relied on
false testimony. See Gallegos v. Turner, 409 P.2d 386, 387 (Utah
1965).
¶25 To prevail on his claims of plain error, ineffective
assistance of counsel, and exceptional circumstances, Allgood
must first show the testimony was in fact false, see Mulder, 2016
UT App 207, ¶¶ 28–29 (stating there is no prosecutorial
misconduct under a claim of false testimony where the
defendant has not shown the testimony to be false), as these
claims rest on this contention. We conclude Allgood has failed to
(…continued)
inadequately briefed, they do inhibit Allgood’s ability to carry
his burden of persuasion. See State v. Roberts, 2015 UT 24, ¶ 18,
345 P.3d 1226 (“[L]ike the marshaling requirement imposed by
rule 24(a)(9) of the Rules of Appellate Procedure, our adequate
briefing requirement is not a ‘hard-and-fast default notion.’
Instead, it is a ‘natural extension of an appellant’s burden of
persuasion.’” (quoting State v. Nielsen, 2014 UT 10, ¶¶ 40–41, 326
P.3d 645)).
20150369-CA 9 2017 UT App 92State v. Allgood
establish that Victim’s testimony was false, and the jury
therefore properly considered it.
¶26 The crux of this issue lies in Victim’s response to the
following question posed by the prosecutor on direct
examination: “What was [Allgood] instant messaging you
about?” Victim responded, “How he wanted to spend time with
me and how he was excited to come tuck me in, and that he
wanted to have sex with me.” Allgood claims the portion of
Victim’s response, “he wanted to have sex with me,” amounted
to false testimony given the differing statements from various
witnesses about the message as well as the detective’s testimony
that he did not recall the text explicitly stating that Allgood
wanted to have sex with Victim.
¶27 Allgood’s claim is resolved when looking to the language
of the prosecutor’s and defense counsel’s initial questions to
Victim about Allgood’s message. The prosecutor asked, “What
was he instant messaging you about?” (Emphasis added). The
prosecutor did not ask Victim what the text of the message read;
rather, she asked about its subject. From Victim’s point of view,
Allgood saying he could not wait to tuck her into bed could have
been code for saying he wanted to have sex with her, especially
considering that Allgood’s abuse was masked under the guise of
tucking her into bed. Victim did not testify about the words used
in the message but instead described its subject.
¶28 Because the detective inadvertently deleted the
photograph he took of the message, the only people who read
Allgood’s message were Victim, Mother, Allgood, and the
detective. Accordingly, the only evidence of the message came
from each of their recollections. Moreover, Victim’s testimony
was but one person’s recollection of the deleted message, and
each of the witnesses differed slightly in their recollection of its
content. There is no way to know whose version was correct,
and without knowing what the message said, there could be no
false impression for the State to correct. See Mulder, 2016 UT App
207, ¶ 28 (explaining that only where a prosecutor “is aware that
20150369-CA 10 2017 UT App 92State v. Allgood
testimony is false, he or she has a duty to correct the false
impression” (citation and internal quotation marks omitted)).
We conclude it was not improper to allow the jury to consider
Victim’s and Mother’s testimony about Allgood’s message. See
Basta, 966 P.2d at 268. Accordingly, Allgood’s claims of plain
error, ineffective assistance of counsel, and exceptional
circumstances fail.
II. Ineffective Assistance of Counsel
¶29 Allgood further contends his convictions should be
vacated on the basis of two additional alleged instances of
ineffective assistance of counsel. First, he argues defense counsel
performed ineffectively by agreeing not to question Victim about
her sexual relationship with Boyfriend on the condition that the
State would not argue Victim became sexually active as a result
of Allgood’s abuse. Second, he argues defense counsel
performed ineffectively by failing to object to alleged hearsay
testimony made by Mother.
¶30 To prevail on these claims, Allgood has the heavy burden
of satisfying both elements of the Strickland test; that is, he “must
show that counsel’s performance was deficient” and “the
deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also State v. Tyler, 850
P.2d 1250, 1254, 1259 (Utah 1993) (“[A] defendant claiming
ineffective assistance of counsel has the difficult burden of
showing actual unreasonable representation and actual prejudice.”).
To satisfy the first element of the test, Allgood “must overcome
the strong presumption that his trial counsel rendered adequate
assistance, by persuading the court that there was no conceivable
tactical basis for counsel’s actions.” See State v. Clark, 2004 UT 25,
¶ 6, 89 P.3d 162 (brackets, citations, and internal quotation marks
omitted). “With respect to prejudice, a challenger must
demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 694).
20150369-CA 11 2017 UT App 92State v. Allgood
A. Counsel’s Agreement with the State
¶31 According to Allgood, defense counsel’s agreement not to
question Victim about her sexual relationship with Boyfriend
prevented him from presenting “a complete defense
and . . . effectively cross-examin[ing] the State’s witnesses,”
because he could not counter the State’s theme that he was
jealous of Boyfriend’s relationship with Victim. Allgood argues,
“[w]ithout that freedom, the only cogent and relevant rebuttal to
the State’s depiction of [Allgood] was unavailable”—namely,
that his apparent jealousy was in fact merely a stepfather’s
normal anxiety over a sexually active teenager.
¶32 Allgood has failed to persuade us that “no conceivable
tactical basis” existed for counsel to agree not to question Victim
about her sexual relationship with Boyfriend in exchange for the
State’s promise not to argue Victim became sexually active as a
result of Allgood’s abuse. See Clark, 2004 UT 25, ¶ 7 (internal
quotation marks omitted). As the State correctly points out,
defense counsel could have reasonably decided not to delve into
Boyfriend’s sexual relationship with Victim because it might
have explained Allgood’s jealousy, thus strengthening the State’s
case. And of course, under counsel’s deal, the prosecutor agreed
not to argue that Allgood bore responsibility for Victim’s having
become sexually active. Rather than attempting to demonstrate
how this strategy would have been unreasonable, Allgood
merely showcases the trial strategy he believes, in hindsight,
would have been more effective. Accordingly, he has not
demonstrated that his counsel performed deficiently.
¶33 Allgood has also failed to establish prejudice. Allgood’s
brief is filled with conclusory statements such as, Victim’s
“sexual relationship with her boyfriend provides a key piece of
the puzzle,” Allgood was unable to “present a complete
defense,” and “it is chutzpah to claim that [Allgood] is forbidden
to explore the exact nature” of Boyfriend’s relationship with
Victim. Not only are these statements incorrect, but Allgood
does not develop these bald assertions. The State’s “jealousy”
20150369-CA 12 2017 UT App 92State v. Allgood
theme did not play a major role in the trial; out of hundreds of
pages of trial testimony, the jealousy theme only surfaces in a
few lines, and neither Victim nor Boyfriend testified that
Allgood was jealous. Moreover, counsel’s agreement did not
prevent Allgood from rebutting testimony that he was jealous. In
fact, Allgood testified he was merely acting as any parent would
have. Allgood also does not attempt to explain how any
purported benefit of inquiring about Boyfriend’s sexual
relationship with Victim could have outweighed the evidence
that Allgood abused her. Because Allgood has failed to show
both that defense counsel performed deficiently and that he was
prejudiced as a result, we conclude defense counsel were not
ineffective for agreeing not to question Victim about her sexual
relationship with Boyfriend.
B. Failure to Object to Alleged Hearsay
¶34 Allgood argues his counsel performed ineffectively by
failing to object to Mother’s testimony about what the police
officer told her on the phone after he stopped Victim while she
was practicing driving with Allgood. Mother testified the officer
told her that he had some concerns about what Victim and
Allgood were doing, that he observed them in a “compromising
position,” and that the situation did not feel right. During this
portion of Mother’s testimony, she also stated that when she
spoke directly with Victim, Victim told her she was just
practicing driving.
¶35 In his opening brief, after arguing that Mother’s testimony
was harmful, Allgood muses, “After such a damaging exchange,
one would hope that there was some strategic reason for letting
[Mother] unload as she did. Why else sit by silently . . . ? Alas, it
was no stratagem, just negligence.” Allgood then concludes,
“There is no possible strategic reason to allow the State to
reinforce the allegations of its complaining witnesses through
the hearsay statements of some unknown, unconfronted police
officer.” Allgood’s conclusory argument falls well short of
demonstrating that defense counsel had “no conceivable tactical
20150369-CA 13 2017 UT App 92State v. Allgood
basis” for failing to object to Mother’s testimony. See Clark, 2004
UT 25, ¶ 7 (internal quotation marks omitted). Allgood must
show—not merely assert—there was no conceivable tactical
basis for counsel’s actions. See id.¶36 In any event, counsel’s actions had a conceivable tactical
basis. Although Mother’s testimony was harmful to Allgood,
defense counsel may have thought it best not to object because
had they objected, the State very well could have called the
officer to testify. Defense counsel might have preferred Mother
to be the one to testify to the events rather than the officer who
observed them firsthand, because the officer could have added
more factual detail concerning his sense that the situation did
not feel right and the basis for his observation that Allgood and
Victim were in a “compromising situation.”
¶37 Allgood also does not show how the outcome of the trial
would have been different had defense counsel objected to
Mother’s testimony. In his opening brief, Allgood addresses
prejudice as to all his claims in a single catch-all section. Without
addressing the inculpatory evidence presented at trial, he
highlights testimony he believes supported acquittal on all
charges. He then concludes, without reasoned analysis, that
because “the State’s evidence was so weak, there is much more
than a reasonable probability that, but for the errors, there
would have been a different result.” “This is merely rephrasing
that which must ultimately be shown to satisfy the second prong
of the Strickland test but is clearly insufficient to affirmatively
demonstrate a reasonable probability that the trial result would
have been different if counsel had not performed deficiently.”
See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993).
¶38 In his reply brief, Allgood contends that where the
evidence in a case is weak, “analyzing the question of prejudice
is not a complicated endeavor.” He then attempts to justify the
conclusory statements in his opening brief by noting that Utah
appellate courts have, on several occasions, held that a
defendant was prejudiced by counsel’s deficient performance
20150369-CA 14 2017 UT App 92State v. Allgood
after analyzing the question in only two, three, or four
paragraphs. Although Allgood briefly summarizes these cases,
he fails to demonstrate how his case is analogous to them, and in
any event, the number of paragraphs a court uses to analyze a
question is not the benchmark. Allgood has failed to
demonstrate prejudice.
¶39 In sum, Allgood’s counsel did not provide ineffective
assistance of counsel by agreeing not to question Victim about
her sexual relationship with Boyfriend or by failing to object to
Mother’s testimony.
CONCLUSION
¶40 We conclude Allgood’s convictions do not rest on false
testimony and he did not receive ineffective assistance of
counsel. We therefore affirm.
20150369-CA 15 2017 UT App 92