State v. Moore , 715 Utah Adv. Rep. 27 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100477‐CA
)
v. ) FILED
) (August 16, 2012)
Richard L. Moore, )
) 2012 UT App 227Defendant and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 091901946
The Honorable Judith S.H. Atherton
Attorneys: Samuel P. Newton, Kalispell, Montana, for Appellant
Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges McHugh, Voros, and Roth.
ROTH, Judge:
¶1 Richard L. Moore appeals from his conviction for sexual abuse of a child, a
second degree felony, see Utah Code Ann. § 76‐5‐404.1(2)‐(3) (2008).1 Moore argues that
the trial court plainly erred in admitting out‐of‐court statements that he claims were
1. We cite the current versions of the Utah Code and the Utah Rules of Evidence
because the relevant statute has not been amended, see Utah Code Ann. § 76‐5‐404.1
amend. notes (2008), and the changes to the relevant rules are “intended to be stylistic
only,” see Utah R. Evid. 104, 2011 advisory committee’s note; id. R. 801, 2011 advisory
committee’s note.
hearsay and that trial counsel was ineffective because counsel failed to object to the
admission of that hearsay evidence. Moore also contends that there was insufficient
evidence to convict him. We affirm.
¶2 “On appeal, we recite the facts in the light most favorable to the jury’s verdict.”
State v. Burk, 839 P.2d 880, 882 (Utah Ct. App. 1992). Moore was convicted of sexually
abusing the eight‐year‐old daughter (Child) of his ex‐girlfriend (Mother). The abuse
occurred while Mother and her children were visiting Moore, who remained a close
friend of the family even after he and Mother were no longer romantically involved.
During their visit to Moore’s home, Moore invited the family to watch a DVD in his
living room. While Child was sitting on Moore’s lap, Moore “slipped” his hand under
Child’s skirt through the leg band of her underwear and “touched [her] vagina.” Child
did not immediately react to the touching.
¶3 After they returned home that night, however, Child told her sister (Sister), “I
need to tell you something.” According to Sister, Child started crying as she told Sister
that Moore touched her “‘“really, really bad”’” on her “‘pee‐pee.’”2 Sister then told
Child to “‘tell Mom.’” While Child did tell Mother that Moore touched her vagina
inside of her underwear, when she did so was disputed. Child recalled telling her the
night of the incident, but Mother thought it was about a month later. Prior to trial, the
State moved to have Child’s statements to Sister and Mother admitted. Moore’s
attorney represented that he “was not going to object to that information.”
I. Hearsay
¶4 Moore now contends that the trial court committed plain error in admitting
Child’s out‐of‐court statements to Sister and Mother and that his counsel was ineffective
for failing to object to admission of Child’s statements to Sister and Mother because
those statements constituted inadmissible hearsay.
2. Sister’s account of the events came into evidence through the testimony of Detective
James Artis, an officer employed with the special victims unit of the Salt Lake City
Police Department, after Sister was unable to recall at trial any of the details of Child’s
report to her that Moore inappropriately touched Child. In a footnote in his brief,
Moore asserts that both Child’s statement to Sister and Sister’s statement to Detective
Artis constitute hearsay. While Moore has identified a potential double hearsay issue,
he does not further analyze this issue, and accordingly, we will not consider it.
20100477‐CA 2
¶5 To establish plain error, the defendant must demonstrate that an error occurred,
the error was or should have been obvious, and the error was prejudicial. See State v.
Casey, 2003 UT 55, ¶ 41, 82 P.3d 1106. With respect to his plain error claim, Moore
argues that the trial court failed to determine whether Child’s out‐of‐court statements
were reliable before allowing them to be presented to the jury. According to Moore,
trial courts have an independent obligation to assess the reliability of a child‐victim’s
out‐of‐court statements in sexual abuse cases prior to admitting them. In support of his
position, Moore relies on cases applying Utah Code section 76‐5‐411, which required a
judge to make findings that the “interest of justice” would be served by allowing a
child‐victim’s out‐of‐court statements to be admitted, see State v. Nelson, 725 P.2d 1353,
1355 n.3 (Utah 1986) (requiring the court to make an in‐depth evaluation of the
proposed evidence under the factors identified in section 76‐5‐411); see also State v.
Matsamas, 808 P.2d 1048, 1051 (Utah 1991) (placing special emphasis on the reliability of
the out‐of‐court statements from the child), and rule 15.5 of the Utah Rules of Criminal
Procedure, which governs admission of recordings of out‐of‐court statements of a child‐
witness. Section 76‐5‐411, however, was repealed in 2009 and was no longer in effect by
the time of the March 2010 trial. See generally Utah Code Ann. § 76‐5‐411 repeals (Supp.
2012). Furthermore, we are not persuaded that rule 15.5 is applicable under these
circumstances—rule 15.5 applies to the admission of recordings of out‐of‐court
statements, whereas this case involved live testimony from Child, Sister, and Mother.
See Utah R. Crim. P. 15.5. Because Moore has failed to explain how case law applying
section 76‐5‐411 and rule 15.5 extends to this situation where neither appear to be
applicable, he has not established any obvious error by the trial court. See generally
Casey, 2003 UT 55, ¶ 41 (explaining that if a defendant fails to show an obvious error, his
plain error claim fails). Moreover, in the trial court, defense counsel expressly stated
that he would not object to the admission of Child’s out‐of‐court statements. Such a
concession results in invited error, which precludes plain error review in any event. See
State v. Hall, 946 P.2d 712, 716 (Utah Ct. App. 1997) (stating that Utah appellate courts
will decline to consider a claim of plain error if defense counsel made a “‘conscious
decision to refrain from objecting’” or “‘led the trial court into error’” (quoting State v.
Bullock, 791 P.2d 155, 158 (Utah 1989))).
¶6 Moore also challenges the admission of the out‐of‐court statements under the
doctrine of ineffective assistance of counsel.
To establish ineffective assistance of counsel, a defendant
must show that (1) counsel’s performance was deficient, in
that it fell below an objective standard of reasonableness and
20100477‐CA 3
(2) counsel’s performance was prejudicial in that there is a
reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.
State v. Maestas, 2012 UT App 53, ¶ 57, 272 P.3d 769 (internal quotation marks omitted).
An ineffective assistance of counsel claim will fail if a “conceivable legitimate tactic or
strategy can be surmised from counsel’s actions.” State v. Tennyson, 850 P.2d 461, 468
(Utah Ct. App. 1993). There is a strong presumption that trial counsel was competent
and effective. See Benvenuto v. State, 2007 UT 53, ¶ 19, 165 P.3d 1195.
¶7 In its brief, the State has posited a “conceivable legitimate” strategic basis for
defense counsel’s decision not to object to the admission of the statements. See generally
Tennyson, 850 P.2d at 468. At trial, Moore presented a theory that Mother induced Child
to fabricate the allegation that he touched Child’s vagina in retaliation for his refusing to
help Mother move to a new residence. He explained that while Child was sitting in his
lap, her skirt bunched up and he realized his hand was resting on her bare thigh. Child
pulled her skirt down, and Moore immediately removed his hand. It is this accidental
touch that he claims was woven into a false allegation that he touched Child’s vagina
after Mother became angry that he had refused to help her move.
¶8 In furtherance of the fabrication defense, defense counsel elicited, during cross‐
examination, Child’s prior statements to Sister and Mother to highlight that Child had
described the touch as occurring not only on her vagina but also over her underwear
and on her inner thigh. Defense counsel attempted to use these inconsistencies to
undercut Child’s credibility and strengthen the defense’s theory that her story was a
fabrication and that Moore’s claim that he accidentally touched Child’s thigh was more
consistent with the facts. In so doing, defense counsel necessarily balanced the risk of
allowing admission of Child’s statements at trial against the chance that inconsistencies
in those statements would help Moore’s case. See generally State v. Franco, 2012 UT App
200, ¶ 10 (noting that trial counsel’s performance cannot be deemed deficient based
simply on the fact that, after diligently weighing the relative risks and benefits of the
available strategic approaches, defense counsel chose a strategy that was ultimately
unsuccessful); cf. State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (attributing defense
counsel’s decision not to object to witness testimony that may have been inadmissible
opinion testimony to a “reasonable tactical choice” because it gave him “considerable
leverage in discrediting that testimony during cross‐examination”). It is not
appropriate for an appellate court, in hindsight, to second guess the strategy of defense
20100477‐CA 4
counsel. See Franco, 2012 UT App 200, ¶ 7; State v. Charles, 2011 UT App 291, ¶ 29, 263
P.3d 469. Because undercutting the credibility of witnesses and strengthening a defense
theory are legitimate tactics, defense counsel’s decision not to object to the prior
statements was not deficient.
¶9 Further, it is not apparent that Child’s statements to Sister and Mother were in
fact inadmissible, in which case trial counsel’s performance cannot be deemed
ineffective. See Maestas, 2012 UT App 53, ¶ 57 (treating counsel’s performance as
deficient if it “fell below an objective standard of reasonableness” (internal quotation
marks omitted)); id. (defining prejudice as “a reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding would have been different”
(internal quotation marks omitted)).
A statement . . . is not hearsay[ if] . . . [t]he declarant testifies
[at trial] and is subject to cross‐examination about a prior
statement, and the statement . . . is consistent with the
declarant’s testimony and is offered to rebut an express or
implied charge that the declarant recently fabricated it or
acted from a recent improper influence or motive in so
testifying . . . .
Utah R. Evid. 801(d)(1)(B). Prior consistent statements may be admitted, however,
“‘only when those statements were made before the charged recent fabrication.’” State
v. Bujan, 2008 UT 47, ¶ 8, 190 P.3d 1255 (quoting Tome v. United States, 513 U.S. 150, 167
(1995)).
¶10 Moore claimed that the allegation that he touched Child’s vagina arose one week
after he refused to help Mother move, and Moore invited the jury to infer that Child’s
accusation was generated as a result of Mother’s resulting anger. On appeal, Moore
contends that Child’s report to Sister occurred after the motive to fabricate because
Sister did not tell Detective Artis about the report until nine months after the touching.
Although Sister did not relay this information to the detective until months later, she
informed him that Child had told her about the sexual abuse the night of their visit to
Moore’s house, which was before the claimed motive to fabricate arose. Thus, Child’s
statement to Sister was likely admissible as nonhearsay under rule 801(d)(1)(B) of the
Utah Rules of Evidence as a prior consistent statement, and objection to its admission
on the basis that it was hearsay would have been futile. See generally State v. Kelley, 2000
UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not constitute ineffective
20100477‐CA 5
assistance of counsel[ because the d]efendant could not have been prejudiced by
properly admitted testimony.” (citations omitted)).
¶11 Regarding Child’s report to Mother, Child testified that she told Mother about
the touching on the night it occurred. Mother testified, however, that Child told her
approximately one month after it happened. Moore testified that the alleged motive to
fabricate—his refusal to help Mother move—occurred approximately three to four
weeks after the incident. The evidence therefore is both conflicting, because Child’s and
Mother’s testimonies about the timing of Child’s disclosure differ, and equivocal,
because there is not enough information in the record about the timing of the refusal to
help Mother move and the timing of Child’s disclosure to Mother to determine when
the two events occurred in relation to each other. Thus, it cannot be determined on the
state of the record before us whether Child reported to Mother that Moore touched her
vagina prior to the occurrence of the motive to fabricate or afterward. Yet Moore’s
position on appeal assumes the testimony unequivocally places the time of Child’s
report to Mother after the motive to fabricate arose. Normally, this type of fact‐
intensive admissibility question is resolved in the trial court, for example, under rule
104 of the Utah Rules of Evidence. See generally Utah R. Evid. 104(a)–(b) (requiring
preliminary questions concerning witness qualification or admissibility of evidence to
be determined by the court, but if the question is dependent on the existence of a fact,
then allowing the court to admit it on the condition that evidence of that fact is
introduced). But because Moore’s trial counsel did not object to the admission of
Child’s statements to Mother, the issue was never presented to the trial court.
¶12 Resolution of this question is not necessary to our decision, however, because
even if Child’s statements to Mother were inadmissible hearsay, they were cumulative,
and their admission thus appears to have been harmless under all the circumstances.
Detective Artis testified that Sister told him that Child had said that Moore “‘touched
her “really, really bad”’” on “‘her pee‐pee,’” while Mother reported that Child told her
that Moore “touched her bad” and explained that he had “put his hands inside of her
panties.” Thus, Mother’s recounting of Child’s statement to her did not appear to add
anything of substance to what Child reported to Sister or to what Child herself testified
to, and any error in admitting it was not prejudicial.3 See generally State v. Evans, 2001
3. The State also contends that Child’s out‐of‐court statements to Sister and Mother
could have come in as excited utterances or as nonhearsay offered solely to explain why
(continued...)
20100477‐CA 6
UT 22, ¶ 20, 20 P.3d 888 (“Harmless error is an error that is sufficiently inconsequential
that there is no reasonable likelihood that it affected the outcome of the proceedings.”);
State v. Maestas, 2012 UT App 53, ¶ 57, 272 P.3d 769 (requiring a defendant to establish
prejudice to succeed on a claim of ineffective assistance of counsel).
II. Sufficiency of the Evidence
¶13 Finally, Moore claims that the evidence was insufficient to prove that he actually
touched Child’s genitals. Moore’s argument has two parts: first that Child’s
description of the location of the touch was so inconsistent as to be apparently false and
second that the State did not establish that Child actually understood the word
“vagina.” Evidence is sufficient to support a conviction “if, ‘upon reviewing the
evidence and all inferences that can be reasonably drawn from it, . . . some evidence
exists from which a reasonable jury could find that the elements of the crime had been
proven beyond a reasonable doubt.’” State v. Kihlstrom, 1999 UT App 289, ¶ 8, 988 P.2d
949 (omission in original) (quoting State v. Dibello, 750 P.2d 1221, 1225 (Utah 1989)); see
also State v. Colwell, 2000 UT 8, ¶ 11, 994 P.2d 177 (explaining that Utah appellate courts
“review the evidence and all reasonable inferences that may fairly be drawn therefrom
in the light most favorable to the jury verdict”).
¶14 When reviewing the sufficiency of the evidence, appellate courts “may not
reassess credibility or reweigh the evidence, but must resolve conflicts in the evidence
in favor of the jury verdict.” State v. Workman, 852 P.2d 981, 984 (Utah 1983). We will
reverse a jury verdict, however, when the evidence “‘is sufficiently inconclusive or
inherently improbable that reasonable minds must have entertained a reasonable
doubt.’” State v. Boss, 2005 UT App 520, ¶ 9, 127 P.3d 1236 (quoting State v. Mead, 2001
UT 58, ¶ 65, 27 P.3d 1115). Witness testimony is inherently improbable and may be
disregarded if it is apparently false, meaning that “its falsity is apparent, without any
resort to inferences or deductions.” State v. Robbins, 2009 UT 23, ¶¶ 16–17, 210 P.3d 288(internal quotation marks omitted); see also Love v. State, 761 N.E.2d 806, 810 (Ind. 2002)
(explaining that “[w]ithin the narrow limits of the ‘incredible dubiosity’ rule, a court
may impinge upon a jury’s function to judge the credibility of a witness” only “[i]f a
sole witness [to the crime] presents inherently improbable testimony and there is a
3. (...continued)
Mother confronted Moore. Because we resolve the issue on other grounds, we do not
reach the State’s alternative bases for admitting the statements.
20100477‐CA 7
complete lack of circumstantial evidence”). In other words, the witness’s testimony
must be so weak or inconsistent that it could not form the basis for a conviction beyond
a reasonable doubt. See Robbins, 2009 UT 23, ¶ 18. Importantly, inherent improbability
does “not allow defendants to challenge witness testimony for generalized concerns
about a witness’s credibility.” Id. ¶ 19 (internal quotation marks omitted); see also State
v. Watts, 675 P.2d 566, 568 (Utah 1983) (“Contradictory testimony alone is not sufficient
to disturb a jury verdict.”).
¶15 Moore claims that Child’s testimony was so inconsistent in her description of the
location of the touching that it is apparently false. We disagree. Child testified at trial
that Moore touched her “vagina,” which she described as the “private parts” her
underwear cover, and described the location of the touching as “inside my pants,” “my
vagina,” and the skin of her vagina. Although Child also described the touching as on
the side of her vagina4 and several witnesses testified that when Child reported that
Moore had touched her “pee‐pee,” she had also identified the location of the touch as
on the “line where the leg meets the thigh” and over her underwear, these
inconsistencies do not render her testimony so apparently false or inherently
improbable as to justify overturning the jury’s verdict. See Robbins, 2009 UT 23,
¶¶ 16–19. Rather, they raise questions of credibility that were appropriately resolved
by the jury. See id. ¶¶ 18–19.
¶16 Moore also claims that the State did not establish that Child actually meant her
genitals when she used the word “vagina” to describe where Moore touched her. But
the prosecutor explored Child’s understanding of the word at trial:
[STATE]: . . . Did his fingers go underneath your
underwear?
[CHILD]: Yes.
[STATE]: Okay, what does your underwear cover?
[CHILD]: My private parts.
4. Child’s statement that Moore touched the side of her vagina was actually not in
response to where the touching was but to how he touched her. Child stated that
Moore was “[k]ind of rubbing” her on the side of her vagina.
20100477‐CA 8
[STATE]: Okay, and what is your private parts?
[CHILD]: My vagina.
Child’s description of her vagina as the “private parts” her underwear covered
indicates that she understood the meaning of the term and was not merely parroting
language used by her family, investigators, or the prosecution. Furthermore, in her
statements around the time the abuse occurred, Child consistently referred to the
general area of the touch as her “pee‐pee,” and her use of the word “vagina” at trial
three years later could be attributable as much to the natural process of maturation and
vocabulary development between eight and eleven years of age as to outside influence.
Certainly, nothing in the record indicates otherwise. In this regard, Moore conceded in
his brief that if Child understood the anatomical meaning of vagina, the evidence would
be sufficient for the jury to convict him because she testified that Moore touched her
“vagina,” and we agree with that assessment. We therefore conclude that there was
sufficient evidence from which a jury could find that Child referred to her genitalia
when she testified that Moore touched her vagina.
¶17 Affirmed.
____________________________________
Stephen L. Roth, Judge
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¶18 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
20100477‐CA 9