In re K.C. (J.D.C. v. State) , 2013 UT App 201 ( 2013 )

2013 UT App 201_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.C., A PERSON UNDER
EIGHTEEN YEARS OF AGE.
J.D.C.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Memorandum Decision
No. 20120280‐CA
Filed August 15, 2013
Eighth District Juvenile, Vernal Department
The Honorable Larry A. Steele
No. 1057251
Marsha M. Lang and Burke Huber, Attorneys for
Appellant
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and
MICHELE M. CHRISTIANSEN concurred.
VOROS, Judge:
¶1 J.D.C. (Father) challenges the juvenile court’s order
adjudicating K.C. (Son) as abused. We affirm.
¶2 On March 9, 2012, the juvenile court found that Father had
abused Son. The court placed Son under the protective supervision
of the State of Utah and ordered Father to develop a Child and
In re K.C.
Family Plan with the Division of Child and Family Services. The
juvenile court adjudicated Son as abused after finding that he
suffered nonaccidental harm when Father spanked him with his
hand and that Son suffered from the threat of harm based on
evidence of prior marks and physical bruising. Father challenges
the juvenile court’s ruling on multiple grounds.
¶3 First, Father contends that the juvenile court abused its
discretion by admitting a photograph into evidence that was of
higher quality and clarity than the same photograph provided to
Father through discovery. “[W]e review a trial court’s refusal to
impose sanctions, such as a failure to exclude evidence under rule
37 of the Utah Rules of Civil Procedure, for an abuse of discretion.”
Glacier Land Co. v. Claudia Klawe & Associates, 2006 UT App 516,
¶ 13, 154 P.3d 852 (citation and internal quotation marks omitted).
However, “an erroneous decision to admit or exclude evidence
does not constitute reversible error unless the error is harmful.”
Butler v. Naylor, 1999 UT 85, ¶ 9, 987 P.2d 41 (citation and internal
quotation marks omitted). An error is harmful if “absent the error
there is a reasonable likelihood of an outcome more favorable to
the [appellant].” State v. Dunn, 850 P.2d 1201, 1221 (Utah 1993).
Here, even if the higher resolution version of the photograph was
erroneously admitted, any error was harmless.
¶4 Father asserts that State v. Knight controls this issue, shifting
to the State the burden to persuade the court that the error did not
unfairly prejudice the defense. See 734 P.2d 913, 920–21 (Utah 1987).
However, Knight is distinguishable on multiple grounds. Knight
involved a criminal case where the prosecution withheld evidence
in its possession that was devastating to the defendant’s alibi
defense; when the defense learned of the evidence on the first day
of trial, the trial court denied the defendant “all requested relief,”
including a continuance. See id. at 917–21. The present case does not
involve a criminal offense, the difference in quality between the
two photographs was not similar to the devastating evidence in
Knight, the State did not have the higher quality photograph in its
possession until one business day before the hearing, and Father
was granted a two‐month continuance so that his expert witness,
Dr. Frasier, could review the higher quality photograph. Thus,
20120280‐CA 2 2013 UT App 201In re K.C.
Knight does not shift the burden of showing the absence of unfair
prejudice to the State in this case.
¶5 Nevertheless, Father argues that the error was harmful
because his “entire defense preparation” and his decision to hire
two expert witnesses were based on the photograph of lesser
quality. Father maintains that the juvenile court’s continuance does
not cure the expenditure of time and money or the prejudice that
resulted from the defense preparations based on the lower quality
photograph.
¶6 However, other than conclusory assertions that he was
prejudiced, Father does not explain how his hearing preparation
was affected. In Knight, which Father urges us to follow, the
supreme court stated that a continuance “would have mitigated the
prejudice [the defendant] suffered” from the prosecutor’s
withholding of the critically damaging information. See id. at 919.
Father does not explain how the two‐month continuance failed to
mitigate any prejudice he claims here. His expert had the
opportunity to review the higher quality photograph and testify
based on that photograph.
¶7 Furthermore, the juvenile court’s final determination rested
on substantial evidence in addition to the photograph and Dr.
Frasier’s testimony, including Son’s interview, a separate set of
photographs, the testimony of Son’s mother (Mother), Father’s
testimony, and the Child Protective Services investigator’s
observations when he inspected Son’s buttocks. Thus, even if the
juvenile court had rejected the higher quality photograph, the court
still had ample evidence to find abuse. Moreover, had the higher
quality photograph been rejected, the lower quality paper
reproduction of the photograph would still have entered the case
as evidence. A reduction in the clarity of the photograph does not
create a “reasonable likelihood of an outcome more favorable to
[Father].” See Dunn, 850 P.2d at 1221. Because Father has not shown
that the admission of the higher quality photograph was harmful
despite the continuance, he is not entitled to reversal of the juvenile
court’s ruling. See id.
20120280‐CA 3 2013 UT App 201In re K.C.
¶8 Second, Father contends that “the juvenile court erred in
denying [Father’s] Rule 59 motion” and subsequent motion to
reconsider, arguing that “new evidence had been discovered”
undermining “Mother’s credibility . . . by actions she had
undertaken post‐trial that contradicted her testimony at trial.”
Under the Utah Rules of Civil Procedure, a new trial may be
granted if the court finds “[n]ewly discovered evidence, material
for the party making the application, which he could not, with
reasonable diligence, have discovered and produced at the trial.”
Utah R. Civ. P. 59(a)(4). Under this rule, “a moving party must
establish: (1) the existence of newly discovered evidence which is
material and competent; (2) that by due diligence the evidence
could not have been discovered and produced before judgment
was entered; and (3) that the evidence is not merely cumulative or
incidental, but is substantial enough that there is a reasonable
likelihood of a different result.” Cabaness v. Thomas, 2010 UT 23,
¶ 50, 232 P.3d 486 (citation and internal quotation marks omitted).
If the juvenile court considers and makes findings on these
elements, those findings will be reversed “only if the court has
abused its discretion.” In re C.L., 2007 UT 51, ¶ 20, 166 P.3d 608.
¶9 Father claims that he was “prejudicially impacted by
Mother’s false testimony” when she took actions “that contradicted
her testimony at trial.” According to Father, the apparent
contradiction was created when, during the hearing, Mother
“indicated that she had not filed any papers to change custody of
the children, nor had she met with an attorney in an attempt to
change custody of her children,” but twelve days after the hearing,
she filed a child custody modification petition.
¶10 The juvenile court rejected this argument, finding that the
new evidence was immaterial and insubstantial. We agree. During
the hearing, Mother testified only that she had not currently met
with an attorney and had not filed any papers to modify custody.
As the State correctly notes, no testimony was elicited from Mother
regarding whether she planned to petition for a change of custody.
Mother’s filing of the modification petition in no way contradicted
her testimony. Additionally, at the hearing, Mother admitted that
custody was an issue during the divorce, that she was not content
20120280‐CA 4 2013 UT App 201In re K.C.
with the current custody situation, and that she would prefer a
different custody arrangement. Thus, the juvenile court was
well aware of Mother’s potential motive to achieve a change in
custody status. Because the “new evidence” does not contradict
Mother’s testimony and its admission would create no likelihood
of a different result, the evidence is immaterial and insubstantial.
Father has not shown that the juvenile court abused its discretion
in making this finding. Therefore, the trial court correctly denied
the rule 59 motion.
¶11 Third, Father contends that “the juvenile court improperly
discredited expert testimony that stood uncontroverted at trial” by
“not mention[ing]” the testimony of his expert, Dr. Honts, in the
court order, which Father contends “presumptively indicat[es] that
the juvenile court gave [Dr. Honts’s] testimony no weight.” Father
argues that this testimony “casts strong doubt on whether the
‘bruise’ occurred as Mother claimed it did” and that “the juvenile
court erred in discrediting [Dr.] Honts’s testimony about the
interviews [with Son] and should have taken [Dr. Honts’s]
testimony into consideration when making its decision.”
¶12 The record demonstrates that the juvenile court, when
weighing the evidence, properly took Dr. Honts’s assessment of the
interview into account. Dr. Honts testified that the interview with
Son had no value despite determining that the interview was
“generally not suggestive” and was “generally conducted
properly” and “followed fairly closely” the standards for forensic
interviewing of a child. After weighing all the evidence—including
Dr. Honts’s testimony—the juvenile court determined that despite
Son’s interview not being perfect, it nevertheless had value. Thus,
the juvenile court did take Dr. Honts’s testimony into consideration
and accepted much of it, though the court disagreed with Dr.
Honts’s ultimate conclusion that the interview had no value.
¶13 The juvenile court was not required to accept Dr. Honts’s
ultimate conclusion. “[U]ltimately, courts are not bound to accept
the testimony of an expert and are free to judge the expert
testimony as to its credibility and its persuasive influence in light
of all of the other evidence in the case.” State v. Maestas, 2012 UT 46,
20120280‐CA 5 2013 UT App 201In re K.C.
¶ 200, 299 P.3d 892 (brackets, citation, and internal quotation marks
omitted). In addition to being “free to accept or reject an expert’s
opinion,” the juvenile court, as a trier of fact, “may accord that
opinion whatever weight it deems proper.” In re G.Y., 962 P.2d 78,
83 (Utah Ct. App. 1998); see also Tucker v. Tucker, 910 P.2d 1209, 1216
(Utah 1996) (“[T]he trial court, as trier of fact, [is] entitled to weigh
the evidence and reject all or part of any witness’s testimony, even
that of an expert.” (citation omitted)).
¶14 Finally, Father contends that the evidence was “insufficient
to determine that a ‘bruise’ even existed” because no expert
testified that the mark on Son’s buttock was a bruise. To reverse a
juvenile court’s decision as to the sufficiency of the evidence, “the
result must be against the clear weight of the evidence or leave the
appellate court with a firm and definite conviction that a mistake
has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (brackets,
citation, and internal quotation marks omitted).
¶15 The State presented lay witness testimony that the mark on
Son’s buttock was a bruise. Under rule 701 of the Utah Rules of
Evidence, testimony of a lay witness is limited to an opinion that is:
“(a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a
fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.”1 Rule 702,
which sets out the standards governing expert testimony, states
that “a witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.” Utah R. Evid. 702. “Under
this rule, no expert testimony is required if the matter at issue in
1. The Utah Rules of Evidence were amended effective December
1, 2011. See Utah R. Evid. 701 2011 advisory committee notes.
However, these changes were intended to be “stylistic only” and
there was no “intent to change any result in any ruling on evidence
admissibility.” See id. Accordingly, we cite the current version of
the rules for convenience.
20120280‐CA 6 2013 UT App 201In re K.C.
the case is one which . . . is within the knowledge of the average
trier of fact, or if the other evidence is such as to present the issues
in terms which the jury can be expected to understand.” State v.
Payne, 964 P.2d 327, 332 (Utah Ct. App. 1998) (omission in original)
(brackets, citation, and internal quotation marks omitted).
¶16 Accordingly, expert testimony is not required when an issue
is “within the common experience of laypersons.” See Beard v.
K‐Mart Corp., 2000 UT App 285, ¶ 16, 12 P.3d 1015. For example,
the “need for specific medical treatment” after an alleged negligent
act is not within the common experience of laypersons. Id.Furthermore, proof of causation requires expert testimony
“[w]here the injury involves obscure medical factors which are
beyond an ordinary lay person’s knowledge, necessitating
speculation in making a finding.” Id. (citation and internal
quotation marks omitted).
¶17 Here, whether the mark constituted a “bruise” and what
caused it did not involve obscure medical factors but was within
the common experience of laypersons. Cf. State v. London, 2010 WI
App 46U, ¶ 7 (per curiam) (holding that there is no need for expert
medical testimony to identify the lack of a bruise). Thus, the
determination of whether a bruise was present on Son is not one
that required expert testimony.2
¶18 Based on the testimony and the photographs of Son’s
buttock, the juvenile court determined that “a mark or bruise”
existed, and thus that Son suffered both “threatened harm” and
2. Moreover, the juvenile court’s conclusion did not rest on the fact
that the mark on Son was a bruise but that the mark indicated
nonaccidental harm. Father’s appellate briefing focuses on the
existence of a bruise and, to an extent, its causation. However, the
legislature defined “abuse” in part as “nonaccidental harm of a
child” or “threatened harm of a child.” See Utah Code Ann.
§ 78A‐6‐105 (LexisNexis 2012). Although “evidence of any bruises,
contusions, or abrasions on the child” is relevant to this
determination, the ultimate inquiry is nonaccidental harm or
threatened harm. See In re L.P., 1999 UT App 157, ¶ 8, 981 P.2d 848.
20120280‐CA 7 2013 UT App 201In re K.C.
“nonaccidental harm by the father spanking him with his hand.”
Despite Dr. Frasier’s inability to determine whether the marks were
a “bruise,” the juvenile court relied on Dr. Frasier’s determination
that if the marks had been left by a person, “then [they] would be
excessive.” Moreover, the juvenile court relied on Father’s
admission that he “does in fact spank the child with an open hand”
and Father’s testimony that Son was a “believable kid” and “does
not lie.”
¶19 Our role on appeal is well defined and “we are reluctant to
substitute our own judgment for that of the [juvenile] court unless
compelled by the law and facts to do so.” See In re Adoption of
Connor, 2007 UT 33, ¶ 17, 158 P.3d 1097. Under the facts of this case,
the juvenile court’s determination is not “against the clear weight
of the evidence” and does not leave us with a “firm and definite
conviction that a mistake has been made.” See In re B.R., 2007 UT
82, ¶ 12 (citation and internal quotation marks omitted).
¶20 Accordingly, the juvenile court’s order is affirmed.3
3. To the extent that we have not addressed other points raised by
Father on appeal, we have determined that they either are
foreclosed by the foregoing analysis or lack merit. See State v.
Carter, 776 P.2d 886, 888 (Utah 1989) (“[Appellate courts] need not
analyze and address in writing each and every argument, issue, or
claim raised and properly before us on appeal. Rather, it is a
maxim of appellate review that the nature and extent of an opinion
rendered by an appellate court is largely discretionary with that
court.”).
20120280‐CA 8 2013 UT App 201