In re D.A.T. , 2021 UT App 69 ( 2021 )

2021 UT App 69THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.A.T.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
STATE OF UTAH,
Appellee,
v.
D.A.T.,
Appellant.
Opinion
No. 20190986-CA
Filed July 1, 2021
Seventh District Juvenile Court, Price Department
The Honorable Craig Bunnell
No. 1108119
Jack M. McIntyre, Lori J. Cave, and Richard R.
Golden, Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
ORME, Judge:
¶1 Appellant, a minor referred to throughout this opinion as
DAT, challenges his delinquency adjudication on one count of
forcible sexual abuse. DAT argues that the juvenile court erred in
allowing the State’s witnesses to rebut his alibi defense after the
prosecutor failed to provide him with notice of those witnesses
as required by statute. We reject his argument and affirm.
In re D.A.T.
BACKGROUND1
Abuse and Investigation
¶2 On February 28, 2019, while riding home on the school
bus, 15-year-old DAT moved from his seat and sat next to a
14-year-old girl (Victim). DAT and Victim had known each other
“[s]ince [they] were little.” DAT soon began “just to touch
[Victim’s] leg.” Victim told DAT to stop, but he did not. DAT
then put his hands down Victim’s pants and inserted his finger
into Victim’s vagina three times. Victim told him no on each
occasion and “kept pushing his hands away.”
¶3 When Victim arrived home, she “went right to her
bedroom.” Victim’s mother (Mother) followed and asked what
was wrong, to which Victim responded “that she wanted to
commit suicide.” Victim then told a friend (Friend 1) of the
abuse via text. Friend 1 urged her to tell school officials, but
Victim did not do so right away, explaining “there [was no]
proof that he did it [and it] would be my word vs his word.” The
date of the text-message exchange indicated that the text
exchange occurred on February 28. Victim and Friend 1 then had
a group call with another friend (Friend 2), during which Victim
told both of them about the abuse DAT perpetrated against her.
A screenshot taken from Victim’s phone showed that this call
also occurred on February 28.
¶4 Five days later, Victim informed school officials of the
abuse, and a police officer (Officer) was assigned to investigate.
Officer interviewed Victim, Mother, Friend 1, Friend 2, DAT,
DAT’s mother, and two other students who were on the bus the
day of the abuse.
1. ”On appeal from a bench trial, we view the evidence in the
light most favorable to the juvenile court’s findings.” In re J.A.M.,
2020 UT App 103, n.1, 470 P.3d 454 (quotation simplified).
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¶5 Victim initially told Officer that the abuse occurred on
February 27. But DAT’s mother told Officer that DAT was not in
school or on the bus on February 27 because he was at a dental
appointment. Officer confirmed that this was the case and
returned to Victim with this information, but Victim reiterated
that February 27 was the date on which the abuse occurred.
Friend 1 also told Officer that while the text message exchange
between him and Victim occurred on February 28, the abuse
happened on February 27.
¶6 Another student who was on the bus (Witness) informed
Officer that she remembered seeing DAT on the bus with his
hand on Victim’s leg, but could not recall the date and noted that
it “could have been months ago.” Witness also told Officer that
DAT was “usually not on the bus.” The other students Officer
interviewed saw no inappropriate touching of Victim by DAT.
¶7 During his interview with Officer, DAT “admitted
putting his hand on [Victim’s] leg” while riding the bus but
denied doing anything else. Officer “never told him what date,
. . . just . . . what the accusations were.” DAT appeared
“astonished” at the accusations, but he did not deny touching
Victim’s leg.
¶8 A few weeks later, Mother called Officer and informed
him that the text and call information on Victim’s phone
indicated that the texting and group call with Friend 1
and Friend 2 occurred on February 28 and, as memorialized
by Officer in his report, that “this would confirm the incident
on the bus between [DAT] and [Victim] occurred on 2-28-19 not
2-27-19.” Officer again met with Victim, who showed Officer
screenshots from her phone verifying that date. Officer scanned
the messages to see whether the date of the incident was
mentioned in the texts themselves, but it was not. There were
security cameras at the school, but Officer did not view or obtain
any of the footage from the dates in question.
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¶9 The State filed a delinquency petition in juvenile court
alleging that “[o]n or about February 27, 2019,” DAT committed
forcible sexual abuse of a child fourteen years of age or older, a
second-degree felony if committed by an adult. After filing the
petition, the prosecutor provided DAT with the police reports
and interviews, which included all the information discussed
above. Sometime after receiving this information, DAT filed a
Notice of Intention to Claim Alibi, pursuant to Utah Code
section 77-14-2 (the alibi statute).2 In this notice, DAT informed
both the prosecutor and the court that he intended to claim he
was not in school or on the bus on February 27 because he was at
the dentist’s office, and that he was not on the bus on February
28 and intended to present an alibi witness (Alibi Witness) who
would testify that he drove DAT home from school that day. The
prosecutor did not respond to the notice.
Delinquency Hearing
¶10 Officer was the first to testify at the delinquency hearing.
Before Officer could begin testifying about his investigation,
however, DAT’s counsel objected:
2. The alibi statute directs that after a defendant has submitted
his notice of an alibi defense, “[t]he prosecuting attorney, not
more than five days after receipt of the [alibi witness] list
provided [by the defense], shall file and serve the defendant
with the addresses, as particularly as are known to him, of the
witnesses the state proposes to offer to contradict or impeach the
defendant’s alibi evidence.” Utah Code Ann. § 77-14-2(1)
(LexisNexis 2017). It also states that “[i]f a defendant or
prosecuting attorney fails to comply with the requirements of
this section, the court may exclude evidence offered to establish
or rebut [the] alibi” but “[t]he court may, for good cause shown,
waive the requirements of this section.” Id. § 77-14-2(3), (4).
20190986-CA 4 2021 UT App 69In re D.A.T.
Under [the alibi statute], we did file a notice of alibi
defense in this case a long time ago. We didn’t
receive a response to that, so with respect to
February 27th or February 28th, I’m going to object
to any evidence being produced to refute that alibi
on those dates. The Court can only waive that right
for good cause being shown.
¶11 The prosecutor replied that while he did not file a
response to the alibi notice, the police reports that “had gone to
them initially indicat[ed] the dates that were involved and . . .
the issue regarding the dates, [and he] was functioning under
the assumption that that took care of [it].” He further stated that
“initially, it was reported . . . that they were talking about the
27th of February [but a] subsequent investigation and a
supplemental report indicate and clarify that the date was
actually the 28th.” DAT’s counsel responded that “the report
does say that, but the code seems to contemplate they’re going to
identify specific witnesses that are going to refute my alibi
defense” and “the police report is not the same thing as a
separate written response to a notice of alibi defense.” The
juvenile court noted that while the alibi statute contemplated
that the State would provide a separate written document in
response to an alibi notice, “the substance of the statute . . .
would establish a basis for good cause . . . in that the substance is
the information that would be provided by [the police] report.”
The court then ruled that “good cause has been shown in that
the defense has had the name of the witness, [and] has had the
dates that the prosecution would be presenting evidence on.”
Accordingly, the court “waive[d] the requirement of [the alibi
statute].” Officer then proceeded to testify regarding his
investigation, along the lines recounted above.
¶12 Victim then testified that the text exchange with Friend 1
and the group call with Friend 1 and Friend 2, both of which
were time-stamped on her phone as February 28, occurred on
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the same day as the incident with DAT. Victim testified that she
“rewrote a police statement,” correcting the date of the incident
from the 27th to the 28th because she had initially “got [her]
dates mixed up” and subsequently “found evidence that it
happened the 28th.”
¶13 Witness testified next and recounted that DAT and Victim
were on the bus on February 28. This testimony differed from
her statement to Officer in which she stated that it “could have
been months ago.” DAT did not object to Witness’s testimony at
this point. On cross-examination, Witness acknowledged that
she could now recall the date only because the prosecutor had
informed her of the correct date. At the beginning of the
prosecutor’s redirect examination of Witness, DAT’s counsel
interrupted the prosecutor’s questioning and requested a sidebar
conference. Unfortunately, the majority of this conversation in
the record is characterized as unintelligible. The entirety of the
conversation, as it appears in the transcript of the delinquency
hearing, is as follows:
[DAT’s Counsel]: Well, let me . . . tell you what my
concern is and then Your Honor can decide
whether or not we want off.
(Side bar conversation was held.)
[Counsel]: But (unintelligible).
The Court: Well, she’s already testified now.
[Counsel]: (Unintelligible.)
The Court: [Prosecutor], your response?
[Counsel]: (Unintelligible.)
[Prosecutor]: I don’t (unintelligible).
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The Court: And that information was provided . . .
to Counsel?
[Counsel]: (Unintelligible) this morning.
[Prosecutor]: (Unintelligible.)
[Counsel]: (Unintelligible.)
The Court: Well . . . from my view, you have not
been ambushed. You . . . already did your
cross-examination, you asked for an exhibit to be
admitted and it was admitted, and so . . . I’m going
to overrule the objection.
Mother, Friend 1, and Friend 2 also testified consistent with their
accounts as summarized above. The State also called one of the
two other students on the bus whom Officer had interviewed.
This student testified that she did not remember specific dates
that DAT was on the bus but that she had seen DAT on the bus
before, although he rode the bus infrequently.
¶14 As part of his defense, DAT called the school bus driver to
testify. She said that she had no recollection of the dates in
question. She stated that she does not allow students to change
seats on the bus but acknowledged that when “driving down the
highway at 65, I don’t see everything.” DAT also called Alibi
Witness, who testified that he “picked [DAT] up from school and
took him home” on February 28. Alibi Witness also testified that
he occasionally rode the bus and if students tried to change
seats, the bus driver “would stop the bus and you’d get yelled
at.” Alibi Witness also claimed that if DAT had gotten on the bus
that day, security cameras at the school would have captured
DAT leaving the school and getting on the bus.
¶15 Finally, DAT testified in his own defense. He asserted that
he did not “take the bus home from school on February 28th,”
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asserting instead that Alibi Witness drove him home. DAT
claimed that while he “told Officer . . . that [he] touched [Victim]
on her leg,” he thought they were discussing a date “[a]round
the beginning of August . . . 2018.”
¶16 After the evidence was presented, the juvenile court
adjudicated DAT delinquent beyond a reasonable doubt. It
stated that when it came to dates, each teen who testified was
somewhat imprecise. The court explained that the screen shots
of Victim’s phone showing that the group call and text occurred
on February 28, in conjunction with Victim’s credible testimony
that she sent the text and engaged in the group call on the same
day as the abuse, “verif[ied] the date of the alleged offense.” The
court also found that while Witness’s “police statement was
mushy at best” regarding the date on which the abuse occurred,
“her testimony on the stand was very emphatic” and “was very
credible.” The court further found the bus driver’s testimony
“that she doesn’t always see what goes on in the back of the bus”
to be “very credible.” Regarding Alibi Witness, the court gave
his testimony little weight because the court found him not
credible. Finally, the court found that Victim’s “testimony was
far more credible and reliable than [DAT’s] testimony” because
“she never changed her story other than the date part” and that
while DAT made “a big deal out of that, . . . the date part is not
as crucial, and the statute itself does not require that.” DAT
appeals.
ISSUE AND STANDARD OF REVIEW
¶17 DAT raises one issue on appeal that merits our plenary
consideration.3 He asserts that the juvenile court erred in ruling
3. DAT also contends that the juvenile court violated his due
process rights “when it failed to consider potentially exculpatory
evidence” in the form of “lost” recordings from the school
(continued…)
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(…continued)
security cameras “that would have disclosed [his] whereabouts
at the times in question.” This issue was not preserved.
DAT asserts that it was preserved simply because “several
witnesses . . . testified that there were video cameras at the
school that would have disclosed [his] whereabouts” and
because the court “considered [Alibi Witness’s] testimony about
the camera’s potential as harming [his] credibility.” Specifically,
the court ruled that Alibi Witness’s “credibility went out the
window” when he began testifying as to what the school’s
security cameras could see because he could not know that
information.
For an issue to be preserved for appellate review, “(1) the
issue must be raised in a timely fashion; (2) the issue must be
specifically raised; and (3) a party must introduce supporting
evidence or relevant legal authority.” Brookside Mobile Home Park,
Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968 (quotation
simplified). None of this occurred below. DAT never asserted
that his due process rights were violated and that he was thus
entitled to a remedy as a result of any allegedly lost video
evidence, thereby failing to specifically raise the issue or
introduce relevant legal authority for the juvenile court to
consider. See State v. Lopez, 2020 UT 61, ¶ 28 n.13, 474 P.3d 949(“[V]ague allusions to due process are not enough to preserve [a]
due process claim[.]”). Essentially, DAT contends that if a lower
court simply considers evidence, any issues that could arise from
that evidence are preserved for appellate review regardless of
whether the lower court considered the specific issue. If we were
to accept this expansive view of our preservation requirement,
we would eviscerate the rule.
Moreover, DAT has not asked us to review this unpreserved
issue under any of the established exceptions to the preservation
rule. See State v. Reid, 2018 UT App 146, ¶ 40, 427 P.3d 1261(“When a defendant fails to raise the issue before the district
(continued…)
20190986-CA 9 2021 UT App 69In re D.A.T.
that “there was good cause to allow the prosecution to elicit
testimony rebutting [his] alibi defense.” When a statute grants a
court “discretion to depart from a general rule based on a
showing of good cause,” we review the court’s decision for an
abuse of discretion. Honie v. State, 2014 UT 19, ¶ 29, 342 P.3d 182.
ANALYSIS
I. Preservation
¶18 On appeal, DAT asserts that the juvenile court’s errors
regarding the alibi statute are twofold. First, he asserts that the
court erred in overruling his objection at the beginning of his
delinquency hearing, before Officer testified, based on the
prosecutor’s failure to comply with the alibi statute. Second,
DAT asserts that the court erred in dismissing his alibi-statute
objection made while Witness was on the stand. It is clear from
the record that the first issue was raised in a timely and specific
manner, and it was thus preserved for our review. See O’Dea v.
Olea, 2009 UT 46, ¶ 18, 217 P.3d 704 (“To properly preserve an
issue at the [trial] court, the following must take place: (1) the
(…continued)
court, the law of preservation controls and we review the issues
under established exceptions to the law of preservation, namely,
plain error, exceptional circumstances, or ineffective assistance
of counsel, if the appellant argues that one of these exceptions
apply.”) (quotation simplified). In focusing on preservation, we
do not mean to suggest that DAT’s due process claim is a
meritorious one. It is far from clear that he would have been
successful on such a challenge. See generally State v. Powell, 2020
UT App 63, ¶¶ 51–55, 463 P.3d 705 (holding that the State had no
obligation to prevent the destruction of potentially exculpatory
evidence that the State never possessed and that was under the
control of a third party).
20190986-CA 10 2021 UT App 69In re D.A.T.
issue must be raised in a timely fashion; (2) the issue must be
specifically raised; and (3) a party must introduce supporting
evidence or relevant legal authority.”) (quotation simplified).
DAT’s second issue, however, was not preserved.
¶19 DAT’s second objection was lodged after DAT had
cross-examined Witness and immediately before the State
conducted its redirect examination. On appeal, DAT claims that
he objected to Witness’s “contaminated testimony” that
contradicted his alibi defense, in reliance on the alibi statute. It is
true that DAT objected at this point to Witness’s testimony, but
based on the record before us, we cannot ascertain the grounds
for the objection. Once DAT objected, the attorneys held a
sidebar conference with the juvenile court, the record of which is
limited to a disjointed, mostly inaudible conversation, which we
recounted in paragraph 13.4 The sidebar ended with the court
4. Under the Utah Constitution and the Utah Code, “[t]he
juvenile court is a court of record.” Utah Code Ann.
§ 78A-6-102(2) (LexisNexis 2018). See Utah Const. art. VIII, § 1
(“The Supreme Court, the district court, and such other courts
designated by statute shall be courts of record.”). Thus, a reliable
record needs to be made of all its proceedings, and merely going
through the motions of setting up recording equipment is
insufficient. Courts must make certain that all their proceedings
are properly and reliably recorded. See State v. Suarez, 793 P.2d
934, 936 n.3 (Utah Ct. App. 1990) (“A record should be made of
all proceedings of courts of record. That precept applies to
conferences in chambers and at the bench as well as more formal
proceedings.”) (quotation simplified). See also Briggs v. Holcomb,
740 P.2d 281, 283 (Utah Ct. App. 1987) (“Although consistently
making a record of all proceedings imposes a greater burden on
the trial court . . . , it is impossible for an appellate court to
review what may ultimately prove to be important proceedings
when no record of them has been made.”). This burden is not the
(continued…)
20190986-CA 11 2021 UT App 69In re D.A.T.
stating, “Well . . . from my view, you have not been ambushed
. . . and so . . . I’m going to overrule the objection.” Based on this
ruling, DAT’s objection could have been premised on several
grounds. For example, DAT could have been requesting that the
(…continued)
court’s alone. The parties “share[] responsibility to insure that an
adequate record is made.” Birch v. Birch, 771 P.2d 1114, 1116
(Utah Ct. App. 1989). And in the event an adequate record is not
made, the Utah Rules of Appellate Procedure provide a remedy,
allowing the parties to file a motion to correct or modify the
record to cure the defect. See Utah R. App. P. 11(h).
That being said, the problems with the record in this case
arose when counsel strayed from their table microphones to
have a conversation at the bench with the juvenile court. We
recognize that sidebar conferences are conducted during trials to
keep legal discussion from the jury, thereby avoiding any taint
of the jury’s consideration of the evidence. We have noted in
reviewing records in other cases the high incidence of
“unintelligible” notations in the record of bench conferences,
suggesting the advisability of making a better record of the
discussion during the next break in the trial or of upgrading the
recording equipment at the bench. Here, however, the case was
tried to the court and we are hard-pressed to understand the
need for the sidebar conversation that took place. After all, there
was no jury whose consideration of the case could be tainted by
the discussion. But in any event, the court and the parties should
have taken care to ensure that the conversation was properly
recorded in compliance with statute and the Utah Constitution.
Given that they failed to do so, DAT should have moved under
rule 11(h) of the Utah Rules of Appellate Procedure to
supplement or re-create the record. See State v. McHugh, 2011 UT
App 62, ¶ 4, 250 P.3d 1006 (per curiam) (“It is an
appellant’s burden to assure that the appellate record is
adequate to evaluate his claims.”).
20190986-CA 12 2021 UT App 69In re D.A.T.
juvenile court revisit his first objection on the basis of the
prosecutor violating the alibi statute. Alternatively, the objection
could have been an entirely new one brought under rule 16 of
the Utah Rules of Criminal Procedure, which carries with it
similar disclosure requirements and potential remedies,
including exclusion of evidence. Or this objection might have
been one premised on prosecutorial misconduct, alleging that
the prosecutor “ambush[ed DAT] at trial with the withheld
evidence,” an action that “would prejudice [DAT’s] right to a fair
trial . . . in contravention of important due process rights.” See
State v. Morgan, 2001 UT 87, ¶ 14, 34 P.3d 767.
¶20 Ultimately, “it is an appellant’s burden to assure that the
appellate record is adequate to evaluate his claims.” State v.
McHugh, 2011 UT App 62, ¶ 4, 250 P.3d 1006. See also Utah R.
App. P. 11(h) (“If any difference arises as to whether the record
truly discloses what occurred in the trial court, the difference
shall be submitted to and settled by that court and the record
made to conform to the truth.”). Based on the inadequate record
before us, we simply cannot ascertain the ground for the second
objection, rendering DAT’s arguments regarding this objection
unpreserved. See State v. Manchester, 2004 UT App 248U, para. 3
(“The record of this objection is entirely unintelligible, and does
not demonstrate that [the defendant] specifically raised the
substance of his appellate challenge to a level of consciousness
before the trial court. Thus, these arguments were not preserved
in the court below, and we will not address them.”) (quotation
simplified). Therefore, we limit our analysis to DAT’s first
objection.
II. Alibi Statute
¶21 DAT’s preserved claim is that the juvenile court erred in
ruling that “good cause” had been shown by the State for
excusing its noncompliance with the alibi statute. The alibi
statute directs that “[a] defendant . . . who intends to offer
20190986-CA 13 2021 UT App 69In re D.A.T.
evidence of an alibi shall . . . file and serve on the prosecuting
attorney a notice, in writing, of his intention to claim alibi.” Utah
Code Ann. § 77-14-2(1) (LexisNexis 2017). This “notice shall
contain specific information as to the place where the defendant
claims to have been at the time of the alleged offense and . . . the
names and addresses of the witnesses by whom he proposes to
establish alibi.” Id. In response, “[t]he prosecuting attorney . . .
shall file and serve the defendant with the addresses . . . of the
witnesses the state proposes to offer to contradict or impeach the
defendant’s alibi evidence.” Id. If the defendant or prosecutor
fails to comply with these requirements, “the court may exclude
evidence offered to establish or rebut alibi.” Id. § 77-14-2(3).
Nonetheless, “[t]he court may, for good cause shown, waive the
requirements of this section.” Id. § 77-14-2(4).
¶22 For purposes of our analysis, we accept the State’s
concessions that the alibi statute applies to this case5 and that the
5. Although the State concedes on appeal that the alibi statute
applies here and that the prosecutor did not comply with it, in
our view it is not entirely clear that the alibi statute does apply to
this case. The alibi statute, by its terms, is concerned only with
witnesses who are able to directly contradict or impeach a
defendant’s alibi evidence. See Utah Code Ann. § 77-14-2(1)
(LexisNexis 2017). In this case, the statute would clearly apply,
for example, if the State intended to call the dentist’s receptionist
to testify that DAT did not have an appointment at the relevant
time or if the State intended to call another of DAT’s schoolmates
to impeach Alibi Witness’s account through testimony that Alibi
Witness gave the schoolmate a ride home on February 28, and
not DAT. But Witness and the other witnesses called by the State
at trial were part of the State’s case-in-chief, and the State
disclosed their identities and contact information to DAT before
he filed his notice of alibi. So, while some of their testimony
went to the credibility of Alibi Witness, Witness and the State’s
(continued…)
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prosecutor violated the statute in a technical sense because he
did not “file and serve [DAT] with the addresses . . . of the
witnesses the state propose[d] to offer to contradict or impeach
the defendant’s alibi evidence.” See id. § 77-14-2(1). Even
assuming such a violation, however, DAT is not automatically
entitled to relief, because the alibi statute grants discretion to the
lower court in determining what, if any, relief is appropriate.
First, the statute does not compel the court to exclude the State’s
witnesses. Rather, it directs only that the court “may exclude
evidence offered to establish or rebut alibi”—it does not state
that the court “shall” exclude it. See id. § 77-14-2(3) (emphasis
added). Additionally, the statute directs that “[t]he court may,
for good cause shown, waive the requirements” of the statute
altogether. See id. § 77-14-2(4). Ultimately, “the overriding
consideration in evaluating any notice-of-alibi claim must be the
avoidance of unfair surprise or prejudice to either party, not an
exaltation of technical formalities.” State v. Ortiz, 712 P.2d 218,
220 (Utah 1985).
¶23 The alibi statute requires only that the prosecutor “file
and serve the defendant with the addresses . . . of the witnesses
the state proposes to offer to contradict or impeach the
defendant’s alibi evidence.” Utah Code Ann. § 77-14-2(1). The
(…continued)
other witnesses were not specifically called “to contradict or
impeach [DAT’s] alibi evidence.” See id. A critical part of
Witness’s testimony was that she remembered seeing DAT put
his hand on Victim’s leg, which supported Victim’s version of
events. This testimony was not a rebuttal to DAT’s alibi but
rather an attempt by the State to establish that DAT committed
the charged offense. Ultimately, we have our doubts about
whether the alibi statute even applies in a situation like this.
Despite our skepticism, because the State admits that the alibi
statute applies, our analysis assumes as much.
20190986-CA 15 2021 UT App 69In re D.A.T.
police reports disclosed to DAT supplied him with a list of ten
potential witnesses—one of which was his mother—and their
contact information, including the seven witnesses the State
called at trial: Victim, Witness, Officer, Mother, Friend 1, Friend
2, and one of the other students on the bus interviewed by
Officer. DAT asserts that this notice was insufficient because it
did not include “notice that any witnesses would be testifying
about [the] events on February 28” and did not specifically
identify “which witnesses would testify to attack [his] alibi,”
thus resulting in “unfair surprise and prejudice.” DAT’s
argument is unavailing.
¶24 From examining both police reports as a whole, it is clear
that DAT was put on notice that the prosecution was going to
focus on February 28, and not February 27, as the day that the
offense occurred. From the reports, DAT knew that Victim
changed her recollection of the date and was now contending
that the incident occurred on February 28. He also knew that
Mother informed Officer that Victim’s phone records would
support that contention. Thus, DAT could not have been
surprised or prejudiced to learn that the State was planning to
produce witnesses who would testify that he was on the bus on
February 28. And while it is true that the reports referred to ten
potential witnesses, not all of whom ended up being relevant to
DAT’s alibi defense or even testifying at the hearing, DAT still
had nearly eight weeks from receiving these reports to interview
the potential witnesses and ascertain what their testimony
would be regarding the specific date of the offense. And he
knew, based on the facts detailed in the police reports, to focus
on Victim, Mother, Witness, Friend 1, and Friend 2 regarding the
date on which they would testify the abuse occurred. This group
of witnesses was not an overly burdensome number to
investigate over a period of two months. And all the witnesses
except Witness testified consistently with the accounts
memorialized in the police reports. Moreover, any supposed
violation of the alibi statute that might have arisen from
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Witness’s inconsistent memory has not been preserved. See supra
¶¶ 18–20.
¶25 Finally, at the hearing, DAT’s counsel acknowledged that
the police “report does say that” February 28, not February 27,
was the day on which the abuse occurred and his only true
complaint was that “the code seems to contemplate they’re
going to identify specific witnesses that are going to refute my
alibi defense” and “the police report is not the same thing as a
separate written response to a notice of alibi defense.” Thus, by
his counsel’s admission, DAT knew whom the prosecutor might
call at the hearing and that the prosecutor’s focus had shifted
from placing DAT on the bus on February 27 to placing him
there on February 28. From the standpoint of DAT’s alibi
defense, this would only shift his focus from being at the dentist
instead of being on the bus, to being driven home by Alibi
Witness instead of being on the bus.
¶26 Based on these facts, even though DAT was not provided
a separate list of witnesses in response to his notice of alibi, the
police reports, when viewed as a whole, provided the “addresses
. . . of the witnesses the state propose[d] to offer to contradict or
impeach [DAT’s] alibi evidence.” See Utah Code Ann.
§ 77-14-2(1). Therefore, the juvenile court’s ruling on DAT’s
preserved challenge comported with “[t]he overriding
consideration” with notice-of-alibi claims: “the avoidance of
unfair surprise or prejudice to either party, not an exaltation of
technical formalities.” See State v. Ortiz, 712 P.2d 218, 220 (Utah
1985). Thus, the court did not abuse its discretion in finding that
there was “good cause [to] waive the requirements of [the alibi
statute].”6 See Utah Code Ann. § 77-14-2(4).
6. DAT asserts that “not having read the reports, and with no
proffer of their content, the trial court had no factual basis for
(continued…)
20190986-CA 17 2021 UT App 69In re D.A.T.
CONCLUSION
¶27 The juvenile court did not abuse its discretion in electing
not to exclude the State’s witnesses in accordance with the
requirements of the alibi statute. DAT received all the
information required through previous discovery disclosures.
¶28 Affirmed.
(…continued)
overruling [his] objection.” At the hearing, the prosecutor
explained that the police reports “initially . . . reported . . . that
they were talking about the 27th of February [but a] subsequent
investigation and a supplemental report indicate and clarify that
the date was actually the 28th,” and DAT’s counsel
acknowledged that “the report does say that.” Thus, if there was
any error on the court’s part for not reading the reports, DAT
invited that error by agreeing with the prosecutor’s summary of
the report’s key content, obviating any need for the court to read
the reports. Cf. State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699(“Under the doctrine of invited error, an error is invited when
counsel encourages the trial court to make an erroneous ruling.
The rule discourages parties from intentionally misleading the
trial court so as to preserve a hidden ground for reversal on
appeal[.]”) (quotation simplified).
20190986-CA 18 2021 UT App 69