State v. Wright ( 2013 )

2013 UT App 142_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JUSTIN GEORGE WRIGHT,
Defendant and Appellant.
Opinion
No. 20090643‐CA
Filed June 20, 2013
Third District, Salt Lake Department
The Honorable Paul G. Maughan
No. 081908349
Lori J. Seppi, Attorney for Appellant
John E. Swallow and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which
JUDGES GREGORY K. ORME and WILLIAM A. THORNE JR. concurred.
ROTH, Judge:
¶1 Justin George Wright challenges his conviction for
aggravated sexual abuse of a child on three grounds. First, Wright
contends that his trial counsel provided ineffective assistance in
investigating and presenting his defense. Wright next argues that
the district court erred when it permitted the jury to hear
inadmissible expert testimony. Finally, he asserts prosecutorial
misconduct during closing statements. We affirm.
BACKGROUND
¶2 Wright was charged by information with two counts of
aggravated sexual abuse of a child after his daughter (Daughter)
State v. Wright
reported that Wright “put his hands down her pants and touched
her buttocks and vaginal area” while they were lying on a couch.
She also reported that Wright sometimes “put his hand down her
shirt and touched her breast area.” According to Daughter, this
conduct began when she was six or seven years old and continued
until August or September 2007, when she was nine years old, at
which time Wright moved to Las Vegas to attend school. Daughter
did not report the abuse until July 2008, approximately ten months
after it had ended. She first told her eleven‐year‐old cousin but
made her cousin promise not to tell because she did not want them
to get in trouble if they were not believed and because she was
afraid that Wright might go to jail and then kidnap her once he was
released. In August 2008, Daughter disclosed the abuse to her
mother (Mother) and Mother’s fiancé.
¶3 Wright was tried by jury on May 5–6, 2009. At the trial,
Daughter testified that when she visited Wright at his apartment,
they would watch television while lying on the couch. Wright
would lie behind Daughter and move the telephone behind him.
Wright would then put his hands down her pants, under her
underwear, touching her vagina and her buttocks, and, on
occasion, under her shirt, placing his hand over her heart. Daughter
reported that Wright touched her in this way “[m]aybe more than
10” times with the last incident occurring “a few weeks before he
moved.” Daughter further testified that she did not tell Mother
right away because Daughter “was afraid she wouldn’t believe
[her].” Nevertheless, Daughter explained that she was able to
disclose the abuse to her cousin because she “felt like [she] could
trust her” but that she still feared what might happen if the cousin
revealed the abuse, including that Wright might kidnap her.
Daughter testified that her fear of being kidnapped stemmed from
a television episode of America’s Most Wanted that she had viewed
sometime in 2007 or early 2008, in which the “dad . . . was touching
his daughter . . . inappropriately” and “went to jail[, then] he got
out and he kidnaped her.” In response to defense counsel’s
questions about her visits with Wright after he moved to Las
Vegas, Daughter testified that he did not touch her sexually during
those visits and that she had “a pretty good time visiting him.”
20090643‐CA 2 2013 UT App 142State v. Wright
Daughter also confirmed that her relationship with her father was
“physically affectionate” and that Wright never threatened her or
told her not to report the touching to anyone.
¶4 Mother and her fiancé each testified about the circumstances
that led to the disclosure and what Daughter had told them.
According to them, Mother, her fiancé, and Daughter were out to
dinner when Daughter told them that Wright had threatened to sue
Mother for custody. Daughter seemed “nervous” about the
situation, but Mother told Daughter not to worry about it because
“[i]t’s an adult situation” that Wright “shouldn’t be bringing . . . up
with [Daughter] in the first place.” Mother told Daughter that she
would “talk to [Wright] about it” and “just kind of let it go.” The
next morning, however, Mother “felt bad” because she typically
“tr[ied] to keep the communication open” by “mak[ing Daughter]
talk to [her] about what she was feeling” when she was upset.
Fearing that she may have been too dismissive with Daughter and
noticing that Daughter was “still a little quiet,” Mother assured
Daughter that she could “tell me things,” even if someone had
made a threat, and analogized the situation to when they had
discussed the difference between good and bad touching and why
Daughter should tell Mother if someone touched her
inappropriately. Daughter then disclosed the abuse. Mother called
the Division of Child and Family Services, which referred her to
Detective Peggy Faulkner, an investigator assigned to the Family
Crimes Unit of the Salt Lake County Sheriff’s Office Investigations
Division.
¶5 Detective Faulkner interviewed Daughter as part of the
investigation that ensued from the sexual abuse Daughter reported.
Detective Faulkner also testified at trial. In the course of its direct
examination, the State asked Detective Faulkner, “Is it uncommon
for you to have cases involving a disclosure that comes years after
an initial event of touching?” Detective Faulkner responded, “No.
No.” Wright’s counsel did not object to this question. But when the
State followed up by asking how many cases Detective Faulkner
had handled where the disclosure occurred a significant period of
time after the abuse, Wright’s counsel did object, arguing that
20090643‐CA 3 2013 UT App 142State v. Wright
Detective Faulkner was never designated as an expert witness and
that the question seemed to require expert testimony. He also
objected on grounds of “relevance.” The court overruled Wright’s
objections. Detective Faulkner then answered, “I would be willing
to say that at least a third of my cases . . . are victims where they
have either become 18 and are [o]lder or they’ve endured the abuse
living with the suspect without telling anyone for years.”
¶6 The defense called Wright’s mother, his sister, and Wright
himself. Wright’s mother testified that Wright and Daughter were
“very affectionate,” “[a]lways” “snuggling on the couch, watching
TV” with Wright lying behind Daughter. Wright also testified
about the “affectionate” nature of his relationship with Daughter.
Wright explained that his family was physically “[v]ery loving[,
v]ery affectionate” and that he raised Daughter the same way. In
particular, Wright described how he would “lay [on] his
[grandfather’s] lap and have him scratch [his] back[].” Wright drew
a comparison between that activity and his lying on the couch with
Daughter and tickling her stomach and back. Wright also testified
about how he had planned to “gain partial custody” of Daughter
once he moved back to Utah. According to Wright, he told Mother
about his plan shortly before he moved and “it caused a big fight.”
He also explained that while he was living in Las Vegas, his phone
contact with Daughter became less frequent.
¶7 Wright’s mother described her own relationship with
Daughter as “very close” and explained that they would regularly
engage in “girl talk,” during which Wright’s mother had talked to
Daughter about inappropriate touching and Daughter told her
“private things.” Daughter never disclosed that Wright was
inappropriately touching her during these talks. Wright’s sister
testified that Daughter was “like [her] little sister” and they too
were “really close.” Wright’s sister explained that Daughter was
comfortable talking to her and sometimes talked to her about boys
she liked, but Daughter had never reported or even hinted that
Wright was sexually abusing her.
20090643‐CA 4 2013 UT App 142State v. Wright
¶8 In his closing statement, defense counsel suggested that
Daughter’s testimony could be the product of her imagination
based on events that occurred on age‐inappropriate television
programs that Daughter watched, such as America’s Most Wanted.
According to counsel, the abuse was not real, but Daughter had
recast an event she had seen on television as something that had
happened to her by transforming, over time, Wright’s innocent and
affectionate touching into something inappropriate. Defense
counsel attributed this to Daughter’s recent decision to call
Mother’s fiancé, “Dad,” and her resulting guilt from “turning her
back on [Wright] for another father. But if over time she has
convinced herself that he’s a pedophile, that he’s abused her from
an emotional perspective[,] it makes it easier and it makes it okay.”
Counsel also argued that “[i]t worked” because Daughter “has
gotten exactly what she wants. She is with the family she wants to
be with[ and s]he doesn’t have to see [Wright].” The prosecutor
responded,
[T]here is absolutely no reason not to believe
[Daughter], who, as I told you before gave you every
single piece of evidence that you need for the
elements of this crime. [Daughter] doesn’t want to
hurt her father. She loved him even after he did
horrible things to her. She just wants him to stop
hurting her. You have the power to make that stop.
¶9 The jury convicted Wright on one count of aggravated
sexual abuse of a child and acquitted him on the other count.1
1. Wright was tried on two counts of aggravated sexual abuse of a
child for the first and the last times that he purportedly sexually
touched Daughter. During deliberation, the jury sent a note to the
court, inquiring,
“We would like some clarification on the different
counts. We take the separate counts to mean separate
instances of the alleged crime. If so, we feel the
(continued...)
20090643‐CA 5 2013 UT App 142State v. Wright
Wright appealed, and on his motion, this court remanded the case
to the district court to conduct a hearing pursuant to rule 23B of the
Utah Rules of Appellate Procedure on the claims that trial counsel
had been ineffective because he had not reasonably investigated or
pursued a fabrication defense and he did not effectively use
available witnesses and evidence at trial. See Utah R. App. P. 23B(a)
(“A party to an appeal in a criminal case may move the [appellate]
court to remand the case to the trial court for entry of findings of
fact, necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.”). The district court on rule 23B
remand concluded that Wright’s trial counsel had not been
ineffective. The court supported its decision with detailed factual
findings.
ISSUES AND STANDARDS OF REVIEW
¶10 Wright makes three claims on appeal. First, he argues that
trial counsel provided ineffective assistance when he failed to
adequately investigate the merits of both the defense urged by
Wright (fabrication) and the defense trial counsel pursued
(mistake). Wright also asserts that counsel underutilized available
evidence and witnesses at trial. “In ruling on an ineffective
assistance claim following a Rule 23B hearing, [appellate courts]
defer to the trial court’s findings of fact, but review its legal
1. (...continued)
evidence may support different conclusions for each
count.
For instance the evidence of the incident
happening in August 2007 [as opposed to the
incident occurring in March 2005] is stronger.
Therefore, if we conclude guilty for this date, which
count, (Count I or II) would this apply?”
Upon the advice of counsel, the court instructed the jury, “Count
one applies to the earlier date. Count two applies to the later date.”
The jury convicted Wright on count two.
20090643‐CA 6 2013 UT App 142State v. Wright
conclusions for correctness.” State v. Bredehoft, 966 P.2d 285, 289
(Utah Ct. App. 1998) (citation and internal quotation marks
omitted). “An ineffective assistance of counsel claim raised for the
first time on appeal presents a question of law.” State v. Clark, 2004
UT 25, ¶ 6, 89 P.3d 162.
¶11 Next, Wright asserts that the district court erred in allowing
Detective Faulkner to testify about the incidence of delayed
reporting in sexual abuse cases when Detective Faulkner had not
been designated or qualified as an expert witness. Ordinarily, we
review evidentiary rulings regarding the admissibility of witness
testimony for abuse of discretion. State v. Tarrats, 2005 UT 50, ¶ 16,
122 P.3d 581 (“[W]e will not reverse the trial court’s ruling on
evidentiary issues unless it is manifest that the trial court so abused
its discretion that there is a likelihood that injustice resulted.”
(citation and internal quotation marks omitted)). The State,
however, argues that this issue was not preserved and that our
review is accordingly limited to determining whether the court
committed plain error or counsel provided ineffective assistance.
To make out a claim of plain error, “a defendant must demonstrate
that [1] an error exists; [2] the error should have been obvious to
the trial court; and [3] the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome.” State
v. Sellers, 2011 UT App 38, ¶ 8, 248 P.3d 70 (alterations in original)
(citation and internal quotation marks omitted). To establish
ineffective assistance, a defendant must show that counsel’s
performance was deficient and prejudicial “to the degree that but
for counsel’s deficient performance, there is a reasonable
probability that the outcome of the trial would have been
different.” Id. ¶ 9 (citation and internal quotation marks omitted);
accord Strickland v. Washington, 466 U.S. 668, 694 (1984) (explaining
that “[a] reasonable probability is a probability sufficient to
undermine confidence” in the verdict).
¶12 Finally, Wright claims prosecutorial misconduct during the
State’s closing statement. Because Wright did not object to the
prosecutor’s statements in the district court, we review the claim
20090643‐CA 7 2013 UT App 142State v. Wright
under the doctrines of plain error and ineffective assistance of
counsel. See Sellers, 2001 UT App 38, ¶¶ 7–9.
ANALYSIS
I. Ineffective Assistance of Counsel
¶13 Wright argues that he is entitled to a new trial because he
received ineffective assistance from his trial counsel. To establish
ineffective assistance, “a defendant must . . . demonstrate that
counsel’s performance was deficient, in that it fell below an
objective standard of reasonable professional judgment[,] . . . [and]
show that counsel’s deficient performance was prejudicial—i.e.,
that it affected the outcome of the case.” State v. Litherland, 2000 UT
76, ¶ 19, 12 P.3d 92. To show that his counsel performed
inadequately, a defendant must “rebut the strong presumption that
under the circumstances the challenged action might be considered
sound trial strategy.” Id. (citation and internal quotation marks
omitted). This presumption “may be overcome only if there is a
lack of any conceivable tactical basis for counsel’s actions.” State v.
King, 2012 UT App 203, ¶ 14, 283 P.3d 980 (citation and internal
quotation marks omitted). “Additionally, because both deficiency
and prejudice must be shown, a reviewing court can dispose of an
ineffectiveness claim on either ground.” State v. Bair, 2012 UT App
106, ¶ 49, 275 P.3d 1050 (citation and internal quotation marks
omitted).
¶14 Wright claims that his counsel was ineffective because he
failed to adequately investigate Wright’s preferred defense of
fabrication, failed to adequately investigate the mistake defense
counsel advocated, and failed to make effective use of the available
witnesses and evidence at trial. On Wright’s motion, we remanded
the case to the district court to make findings necessary to the
determination of whether trial counsel failed to reasonably
investigate a fabrication defense and to make appropriate use of
20090643‐CA 8 2013 UT App 142State v. Wright
the available witnesses and evidence.2 Wright has raised the failure
to investigate a mistake defense for the first time on appeal. In this
section, we will first address Wright’s claims that counsel failed to
investigate the two possible defenses, including his claim that a
complete investigation of the fabrication defense would have
caused counsel to “realize[] that his reasons for doubting the
viability of the defense were unfounded.” We will then consider
counsel’s decisions not to use the exhibits Wright provided him
and not to call certain witnesses at trial. Finally, we will evaluate
Wright’s claim that counsel did not effectively examine Wright’s
mother and sister at trial.
A. Counsel Did Not Fail To Investigate the Potential Defenses, and
His Pursuit of a Mistake Defense Was a Reasonable Tactical
Decision.
¶15 Wright claims that counsel failed to reasonably investigate
either Wright’s preferred defense of fabrication or the mistake
defense that counsel actually presented. With regard to the
fabrication defense, Wright argues that counsel, having heard
Daughter’s and Mother’s testimonies at the preliminary hearing,
did not fully consider all of the testimony about the acrimony
between Mother and Wright as well as the circumstances leading
to Daughter’s disclosure that Wright’s witnesses were prepared to
provide in response at trial. In particular, the witnesses could have
explained that Mother had recently insisted that Daughter call
Mother’s fiancé, “Dad,” and that Mother had told Daughter that
Wright was planning to seek custody of Daughter. Wright claims
that had counsel conducted such an investigation, counsel not only
would have seen the viability of a fabrication defense but also
would have viewed it as superior to the mistake defense. With
respect to his claim that counsel failed to conduct an adequate
investigation of the mistake defense, Wright asserts that counsel
2. We commend the district court for the care and detail with which
it entered its findings and conclusions.
20090643‐CA 9 2013 UT App 142State v. Wright
did not research the defense sufficiently to be able to effectively
explain to the jury why Daughter was mistaken.
¶16 The Utah Supreme Court has stated that “counsel can make
a reasonable decision to call or not to call particular witnesses for
tactical reasons” in presenting a defense “only after an adequate
inquiry” into “the underlying facts of a case, including the
availability of prospective defense witnesses.” State v. Templin, 805
P.2d 182, 188 (Utah 1991). Wright contends that because testimony
from several potential defense witnesses would have supported his
claim that Daughter had been induced to lie, his counsel must have
inadequately investigated a fabrication defense. On remand,
however, the district court determined that counsel “knew of the
substance of the testimony” of available defense witnesses and
“adequately investigated their potential testimony,” although it
recognized that counsel “only spent a minimal amount of time
preparing” one witness who had information pertinent to the
fabrication defense. Wright has not contested the court’s findings
that counsel was adequately aware of the testimony supporting a
fabrication defense. Wright has therefore failed to demonstrate that
counsel’s investigation fell outside the “wide range of reasonable
professional assistance.” See Strickland v. Washington, 466 U.S. 668,
689 (1984).
¶17 Wright also claims that counsel’s investigation of the
mistake defense was incomplete because he relied on Daughter’s
exposure to “adult content” in age‐inappropriate television
programs and books without researching their contents. According
to Wright, had counsel investigated, he would have learned that
the television programs Daughter may have been exposed to
covered the topics of sexuality, family discord, and use of abuse
allegations to alienate an accused parent and that Daughter was
reading books that contained sexual content “too graphic for a ten‐
year‐old child.” The State counters that Wright’s claim requires
speculation that the contents of the television shows and books
would have bolstered the defense. We agree. Wright’s claim is
based on the premise that additional research into the content of
the media to which Daughter might have been exposed would
20090643‐CA 10 2013 UT App 142State v. Wright
have provided information useful to the mistake defense. While
there is evidence in the record that Daughter “loved” watching
Oprah and also watched America’s Most Wanted and Dr. Phil on
occasion, Wright has failed to support, with specific facts, his
contention that counsel’s failure to look further into this subject
would likely have provided substantial additional evidence to
support a mistake defense. For example, Wright identifies the
suggestive titles of several episodes of Dr. Phil (e.g., “Is there a
Predator in the House?,” “Family Court Battles,” “Controversial
Love Affairs,” and “You’re a Liar!”). He fails, however, to show
either that Daughter actually watched the specific episodes he
identifies, which he claims would have provided her with
information helpful to the fabrication of her abuse allegations or
may have caused her to misinterpret innocent touching as sexual
and inappropriate, or that she watched the programs frequently
enough that her exposure to specific programs could reasonably be
inferred. Nor has Wright adequately identified what he claims to
be the graphic sexual content of the books she read or analyzed
how the content of such books might be shown to have affected her
disclosure. As a consequence, his contentions are too vague to
support more than speculation that counsel was deficient in not
further investigating either the television or book matters. Cf. Allen
v. Friel, 2008 UT 56, ¶ 27, 194 P.3d 903 (affirming the dismissal of an
ineffective assistance claim on a petition for postconviction relief
because the claim was “vague and speculative”). See generally State
v. Garrett, 849 P.2d 578, 581 (Utah Ct. App. 1993) (explaining that
without specific facts to demonstrate that counsel’s failure to object
was due to deficiency rather than trial strategy, the defendant’s
claim amounted to speculation, and mere speculation is insufficient
to overcome the presumption of sound trial strategy).
¶18 Furthermore, the evidence counsel actually presented at trial
to portray Daughter as confused or mistaken about appropriate
and inappropriate touching indicates that he was reasonably
informed of Daughter’s potential exposure to the subject matter.
For example, he established that Daughter sometimes watched
Oprah, Dr. Phil, and America’s Most Wanted and followed up on
Daughter’s admission that her fear about disclosing the abuse
20090643‐CA 11 2013 UT App 142State v. Wright
stemmed from an episode of America’s Most Wanted, in which the
father had been touching his daughter inappropriately and
kidnapped her after she reported it; he elicited testimony from
Detective Faulkner that when asked if “anyone else touched you in
a way that made you uncomfortable,” Daughter had reported
innocent touching of her chest and buttocks by other children while
they were playing; and he pointed out that Mother “specifically . . .
brought up the good touch/bad touch analogy” in the context of a
discussion with Daughter about Wright seeking custody that
ultimately led to Daughter’s disclosure.
¶19 Wright’s claim that counsel’s investigation of the mistake
defense was deficient therefore amounts merely to speculation
about what more counsel might have done. Furthermore, his use
of the available information to pursue such a defense otherwise
appears appropriate. As a result, Wright’s claim that counsel was
ineffective for failing to adequately investigate the mistake defense
is unpersuasive.
¶20 Finally, Wright asserts that the mistake defense was
strategically “inferior” to the fabrication defense “because it is
incomplete: It explained how [Daughter] could manufacture false
allegations of abuse, but not why she would.” Wright’s attack on
trial counsel’s strategic decision at this stage in the proceeding,
however, is made with the benefit of hindsight. Even if Wright’s
proposed approach to his defense might actually have amounted
to a better strategy than the one his counsel chose, we will not
conclude that trial counsel was ineffective unless “there is a lack of
any conceivable tactical basis for counsel’s actions,” State v. King,
2012 UT App 203, ¶ 14, 283 P.3d 980 (citation and internal
quotation marks omitted). See Strickland, 466 U.S. at 690(“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.”);
State v. Graham, 2013 UT App 72, ¶ 15, 299 P.3d 644 (explaining that
once counsel has investigated the underlying facts, strategic
decisions regarding those facts cannot be deemed deficient except
where there is no reasonable basis for them). In reviewing a claim
of ineffective assistance,
20090643‐CA 12 2013 UT App 142State v. Wright
“judicial scrutiny of counsel’s performance must be
highly deferential” because “it is all too easy for a
court, examining counsel’s [performance] after it has
proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.” Therefore,
the court must “eliminate the distorting effects of
hindsight . . . and . . . evaluate the conduct from
counsel’s perspective at the time.”
Menzies v. Galetka, 2006 UT 81, ¶ 89, 150 P.3d 480 (alteration and
omissions in original) (quoting Strickland, 466 U.S. at 689).
Consequently, a reviewing court “will not second‐guess trial
counsel’s legitimate strategic choices, however flawed those
choices might appear in retrospect.” State v. Tennyson, 850 P.2d 461,
465 (Utah Ct. App. 1993) (citing Strickland, 466 U.S. at 689).
¶21 The district court’s findings on this subject, which Wright
does not challenge, demonstrate that there were legitimate bases
for counsel’s decision to rely on a mistake defense at trial. The
court explained that although at least one available witness had
information with which counsel could have formulated a
fabrication defense, “the theory that [Daughter] was induced [by
Mother] to lie or decide on her own to falsify the allegations in
order to prevent her father from obtaining custody is at odds with
the evidence of [Daughter’s] disclosure to her cousin” in July 2008,
in which she urged the cousin not to tell anyone else, and with
Mother’s failing to “suspect[] abuse, allow[ing Daughter] to go on
trips to visit [Wright] unsupervised, and believ[ing Wright] to be
a good and loving father.” Rather, the court reasoned, counsel
judged that a mistake defense would be more persuasive to jurors,
who would want an explanation for “how a child who came across
as credible and intelligent would make up allegations against her
father.” The court concluded that, given the totality of the available
evidence, counsel’s decision to pursue a mistake defense rather
than a fabrication defense was a “reasonable trial strategy.”
¶22 We conclude that the district court’s conclusion was
supported by the evidence. The district court found that trial
20090643‐CA 13 2013 UT App 142State v. Wright
counsel interviewed all but one of the available defense witnesses
and was aware of the information to which each witness was
prepared to testify. From this available information, counsel elected
to pursue a mistake defense rather than a fabrication defense.
While a fabrication defense appears viable, the exercise of
professional judgment in choosing one approach over another is an
endeavor that often involves a complex weighing of benefits and
risks, and the decision counsel made in this instance amounted to
a reasonable trial strategy given the totality of the evidence.
Because there was a “conceivable tactical basis for counsel’s
action,” State v. King, 2010 UT App 396, ¶ 31, 248 P.3d 984 (citation
and internal quotation marks omitted), we “will not second‐guess”
his decision, see Tennyson, 850 P.2d at 465.
B. Counsel’s Decision Not To Call Additional Witnesses or Present
Documentary Evidence Falls Within the Scope of Legitimate Trial
Strategy.
¶23 Wright next contends that trial counsel had no legitimate
strategic reason for not calling additional defense witnesses or
presenting certain photographs, videos, and phone (audio and text)
messages that documented his and Daughter’s loving and
appropriate relationship. At the rule 23B hearing, the trial court
concluded that counsel did not perform deficiently in choosing not
to call certain additional defense witnesses because, although those
witnesses appeared to be credible, they were on balance unlikely
to have added substantively to the defense. For example, the court
found that if Wright’s brother had been called at trial, his testimony
would have been much the same as that of Wright’s mother and
sister. Yet calling him posed some risk because he “was ambivalent
about being a witness in light of his divided feelings” for Daughter,
his niece, and Wright, his brother. Wright’s aunt may have “added
some information” about Daughter and Wright’s relationship, but
she was so focused on defending the family’s practice of physically
showing affection (specifically through back scratching) that she
became “non‐responsive to questions and seemingly very
defensive” as soon as this issue was raised. A third witness offered
information that was largely inadmissible.
20090643‐CA 14 2013 UT App 142State v. Wright
¶24 With respect to the documentary evidence, the court
concluded that counsel acted reasonably in not presenting
photographs, videos, and phone messages from Daughter,
provided to him by Wright and his family, which Wright contends
showed that Daughter was happy and loving with him. The court
found that counsel had explained that most of the photographs
were of Daughter “smiling” “in the course of some fun or happy
event” with Wright. Counsel did not want to admit too many of
these photographs because he believed that the jury found
Daughter to be both credible and compelling and was concerned
that “the jury would look at the cute photos of [Daughter] in the
jury room” and be “remind[ed of] . . . how much they believed
her.” Furthermore, many of the photographs were of Daughter’s
visit with Wright in Las Vegas after the abuse had stopped. And
there was no dispute that Daughter had positive interactions with
Wright after he moved to Las Vegas and the abuse stopped.
Daughter even testified at trial that she “ha[d] a pretty good time
visiting [Wright] in Vegas.”
¶25 Counsel omitted the remaining documentary evidence for
similar reasons. The court found that the videos and phone
messages showing Wright and Daughter interacting positively did
“not carry much weight” because Daughter herself had testified
that she loved Wright and that they usually did fun activities
together. The court also noted that counsel was reluctant to use a
video “where [Wright] said, ‘Tell me you love me’” to Daughter
because he thought it “could be perceived as creepy by the jury”
when viewed in the context of the abuse allegations. Wright has not
challenged these findings. Therefore, we accept the facts as the
district court found them. See State v. Bredehoft, 966 P.2d 285, 289
(Utah Ct. App. 1998).
¶26 These facts support the district court’s conclusion that trial
counsel’s decision to exclude the documentary evidence did not
amount to ineffective representation. For example, trial counsel
determined that a fabrication defense would be unlikely to be
successful because, among other things, it was “at odds with the
evidence of [Daughter’s] disclosure to her cousin. . . . [and] urg[ing]
20090643‐CA 15 2013 UT App 142State v. Wright
her cousin not to tell anyone.” Counsel therefore decided to present
a defense that Daughter had mistaken innocent touching and
manifestations of affection as sexual and inappropriate—a
misperception fueled by her growing relationship with Mother’s
fiancé and exposure to age‐inappropriate media. Counsel’s
decisions about which witnesses to call and the scope of the
testimony he sought from them were thus intended to be consistent
with a mistake defense. Counsel’s decision not to use the
photograph and video exhibits of Daughter was based on a similar
rationale: counsel judged Daughter’s testimony to be “very
compelling” and “[h]e didn’t want to inject her into the jury room
. . . because the jury would look at the cute photos of [Daughter] . . .
and the photos would remind them how much they believed her.”
Further, multiple photographs of Daughter enjoying the time she
spent with Wright might undermine his theory that Daughter was
simply mistaken or confused about the abuse, while the video
evidence could cause the jury to view Wright’s relationship with
Daughter as “creepy.” The court concluded that these exhibits had
“limited evidentiary value” in that they “were not exculpatory
because they “did not establish that the abuse did not occur” but
instead “were, at best[,] cumulative of other exhibits and testimony
that showed that [Wright] and [Daughter] appeared to have a
loving and affectionate relationship” and, at worst, could be
perceived negatively by the jury, as counsel feared. Counsel’s other
decisions regarding which evidence to present were also based on
his concern that Daughter’s credibility not be inadvertently
enhanced by evidence that was of only limited value to the
defense.3 Therefore, the court’s conclusion that counsel had a
plausible strategic basis for declining to call additional defense
witnesses or to introduce the additional documentary evidence
3. For instance, the court concluded that counsel had a “legitimate
strategy” in “not want[ing] to dwell on the back‐scratching”
because although it served to corroborate Wright’s description of
his family members as physically affectionate with one another, it
could also raise questions about their understandings of
appropriate boundaries.
20090643‐CA 16 2013 UT App 142State v. Wright
Wright provided appears to be well founded. When there is a
conceivable trial strategy for counsel’s decision, his performance is
not deficient. State v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980.
C. Counsel Was Not Deficient in Limiting the Use of Wright’s
Mother’s and Sister’s Testimonies.
¶27 Finally, Wright contends that counsel was ineffective for
failing to fully utilize the defense witnesses on direct examination.
Specifically, he asserts that counsel failed to question his mother
and sister about their knowledge of information that could rebut
the prosecution witnesses’ testimonies. For example, Wright
contends that his mother and sister could have countered
Daughter’s testimony that she did not love her dad and was scared
during the time the abuse was occurring with specific examples of
instances when Wright and Daughter demonstrated love and
affection toward one another. He further claims that his mother
and sister would have offered testimony to show that Daughter
was visibly distressed during a visit with Wright in August 2008,
which was very close in time to her disclosure to Mother. Wright
explains that Daughter’s visit was immediately preceded by a
vacation with Mother and her fiancé, during which Mother insisted
that Daughter call the fiancé, “Dad.” Wright’s sister could also
have testified that Daughter had disclosed during the visit that
Mother had told her that Wright was trying to get custody so as to
take her away from Mother. According to Wright, testimony about
the circumstances surrounding that visit with Daughter would
have demonstrated Daughter’s “motive to misinterpret innocent
touches as abuse” because she was confused about how her
relationships with Wright and Mother’s fiancé could co‐exist and
she was worried that Wright might take her away from Mother.
Wright further contends that the evidence could have shown that
Mother had “a motive to encourage [Daughter] to allege abuse” to
ensure that Wright would not receive custody of Daughter.
¶28 The district court determined, however, that trial counsel
knew that Wright’s mother and sister were prepared to testify to
these things but that this “additional testimony would not have
20090643‐CA 17 2013 UT App 142State v. Wright
advanced [trial counsel]’s theory of the case,” which was mistake.
The court reiterated that pursuing a mistake defense was a
reasonable trial strategy that “the Court must sanction . . . , even if
it appears flawed in retrospect.” Wright has not challenged the
district court’s finding that counsel was aware that this testimony
was available. And because counsel knew about this information
but elected not to elicit it at trial based on his judgment that it
would not further the mistake defense, Wright has failed to
overcome the presumption that counsel’s performance “fell below
an objective standard of reasonable professional judgment” that
would render his performance ineffective. See State v. Litherland,
2000 UT 76, ¶ 19, 12 P.3d 92 (explaining that in order for a
defendant to show that counsel performed inadequately, a
defendant must “rebut the strong presumption that under the
circumstances, the challenged action might be considered sound
trial strategy” (citation and internal quotation marks omitted)).
¶29 The district court, however, did criticize one decision that
trial counsel made regarding the scope of Wright’s sister’s
testimony. As discussed above, the sister was prepared to testify
that, in August 2008,4 Daughter told her and Wright’s mother about
a conversation in which Mother had told Daughter that Wright was
trying to get custody of her and take her away from Mother.
Apparently based on his decision to pursue a defense of mistake
rather than fabrication, counsel did not present this testimony. The
court concluded that “[t]here was no legitimate trial strategy that
would have allowed [counsel] to fail to put on this evidence.” This
conclusion is difficult to reconcile with the court’s earlier
determinations that the underlying decision not to pursue a
fabrication defense was a legitimate strategic approach and that
counsel was not deficient in failing to elicit this very testimony
4. In its findings, the court stated that this disclosure occurred in
August 2010. Based on other portions of the record, it appears that
the conversation must have occurred in 2008. We therefore treat the
2010 date as a typographical error.
20090643‐CA 18 2013 UT App 142State v. Wright
from Wright’s sister because it would not have supported the
mistake defense counsel chose.
¶30 After carefully reviewing the district court’s entire decision
regarding counsel’s trial performance, we have concluded that the
apparent inconsistency results from the format of the court’s
decision. When we remanded for a rule 23B hearing, we asked the
district court to make findings and conclusions about counsel’s
decisions regarding three specific categories of evidence:
documentary exhibits, uncalled defense witnesses, and utilized
defense witnesses. The court set up its written findings of fact and
conclusions of law in this same arrangement. An overarching issue,
however, in both the motion to remand and the arguments made
at the rule 23B hearing was whether trial counsel adequately
investigated the fabrication defense before he elected to pursue a
mistake defense. As a result, the court made determinations in the
context of each category of evidence about counsel’s investigation
of the fabrication defense and his decision to instead defend on the
basis of mistake. In all but this one instance regarding the sister’s
testimony about Wright seeking custody, the court determined that
counsel had a legitimate strategic reason for his decision to use
only the evidence supporting a mistake defense. When the court
evaluated counsel’s decisions regarding the sister’s testimony, it
again stated that “counsel’s strategy of not maligning [Mother] and
to try to present [Daughter] as confused was a legitimate strategy.”
Yet it then went on to say that counsel was deficient for precluding
sister’s testimony about Daughter’s statement because “this
evidence could have provided a basis to believe that [Daughter]
and/or [Mother] had a motive to falsify the allegations.”
¶31 The court appeared to be stating that in this category of
evidence—the use of Wright’s mother’s and sister’s
testimonies—there was some factual basis for a fabrication defense.
The court went on to conclude, however, that when viewed in the
context of the evidence as a whole, a fabrication defense still would
have been unlikely to succeed because even if the jury believed the
sister’s testimony, an event the court deemed unlikely, there was
a dearth of other evidence to corroborate a claim that the abuse
20090643‐CA 19 2013 UT App 142State v. Wright
allegations had been fabricated. This assessment of the relative
strength of the fabrication defense thus seems consistent with the
court’s earlier statement that “[a]lthough the testimony offered by
. . . [Wright’s sister] may have been material to a jury, counsel’s
strategy . . . to try to present [Daughter] as confused was a
legitimate strategy.”
¶32 As previously discussed, we agree that the district court’s
uncontested findings regarding the substance and content of
available witness testimony and documentary evidence support a
conclusion that it was reasonable trial strategy for trial counsel to
pursue a defense of mistake rather than fabrication. And based on
our view of the totality of the evidence and the court’s decision as
a whole, we do not see the court’s isolated criticism of trial
counsel’s performance to undermine its overarching decision that
counsel did not perform deficiently in deciding on a defense
strategy, even when the potential value of Wright’s sister’s
testimony is taken into account. See State v. Bredehoft, 966 P.2d 285,
289 (Utah Ct. App. 1998) (“In ruling on an ineffective assistance
claim following a Rule 23B hearing, [appellate courts] defer to the
trial court’s findings of fact, but review its legal conclusions for
correctness.” (citation and internal quotation marks omitted)).
Because Wright has not demonstrated that counsel’s performance
in choosing a strategic approach to the defense was deficient, his
ineffective assistance claim regarding counsel’s use of his mother’s
and sister’s testimonies must also fail.
¶33 In summary, we agree with the district court’s conclusions
that trial counsel’s investigation provided him with sufficient
information about available witnesses and exhibits to allow him to
make an informed decision about whether to pursue a fabrication
defense or a mistake defense at trial. Counsel had a legitimate basis
for choosing the mistake defense and making decisions about what
evidence to present. Because his decisions not to present the
documentary exhibits or the testimony of Wright’s brother, aunt,
and friend and to limit the scope of the testimony of Wright’s
mother and sister were based on this strategic decision and tactical
considerations about credibility and effectiveness of particular
20090643‐CA 20 2013 UT App 142State v. Wright
evidence, they did not amount to deficient performance.
Accordingly, we conclude that the district court did not err in
determining that counsel provided effective assistance in
investigating possible defenses and defending Wright at trial.
II. Detective Faulkner’s Testimony
¶34 Wright next challenges Detective Faulkner’s testimony
regarding the prevalence of delayed reporting of sexual abuse.
Wright’s challenge involves two statements: (1) Detective
Faulkner’s response, “No. No.” when the State asked, “Is it
uncommon for you to have cases involving a disclosure that comes
years after an initial event of touching?” and (2) Detective
Faulkner’s statement, in response to the State’s inquiry about how
many of the cases she had investigated involved a significant delay
in reporting, that “at least a third of my cases . . . are victims where
they have either become 18 and are [o]lder or they’ve endured the
abuse living with the suspect without telling anyone for years.”
¶35 Utah courts have recognized that “‘[d]elayed discovery and
reporting are common in [child sexual abuse] cases.’” State v. Bair,
2012 UT App 106, ¶ 47, 275 P.3d 1050 (alterations in original)
(quoting State v. Hoyt, 806 P.2d 204, 209 (Utah Ct. App. 1991)). In
Bair, for example, a detective testified that “‘[b]ased on the
probably hundreds of [abuse] cases [he has] investigated, it’s not
uncommon for a victim not to disclose initially.’” Id. ¶ 7 (alterations
in original). The defendant sought reversal on appeal because such
testimony “invaded the province of the jury” to assess credibility.
Id. ¶ 44. We observed that “[s]imply noting that abuse victims often
delay reporting did not” vouch for the victim’s veracity because
that testimony reflected “a fact already recognized by Utah courts.”
Id. ¶ 47. As in Bair, Detective Faulkner’s negative response to the
question about whether it was uncommon to have cases where the
abuse went unreported for a period of time simply relayed a
common fact to the jury and did not convey any information about
how it should view the testimony or other evidence in the case.
20090643‐CA 21 2013 UT App 142State v. Wright
¶36 Detective Faulkner’s testimony, however, went a step
beyond recognition of the general principle that delayed reporting
is common when she reported that one‐third of the “[h]undreds”
of “child sex abuse” cases that she has investigated over five years
involved delayed reporting of the abuse. According to Wright, this
kind of quasi‐statistical information falls within the realm of
“knowledge [that] is not within the ken of the average bystander,”
State v. Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176, and is
therefore governed by evidence rules dealing with expert
testimony, id. ¶¶ 11–12 (“Expert testimony, which is treated under
rule 702 [of the Utah Rules of Evidence], is opinion or fact
testimony based on scientific, technical, or otherwise specialized
knowledge” and is subject to “various qualification and advance
disclosure requirements.”). Wright further contends that this quasi‐
statistical information “encouraged the jury ‘to focus upon a
seemingly scientific, numerical conclusion rather than to analyze
the evidence before it and decide where the truth lies.’” (Quoting
State v. Rammel, 721 P.2d 498, 501 (Utah 1986).) The State counters
that even if Detective Faulkner’s testimony regarding the
percentage of her cases that involved delayed reporting was
inadmissible, its admission did not prejudice Wright’s case and
thus was harmless error not requiring reversal. See generally State
v. Otterson, 2010 UT App 388, ¶ 11, 246 P.3d 168 (“Utah appellate
courts have long required a showing of harm to warrant reversal
in the face of an erroneous evidentiary ruling.” (citing State v. Kohl,
2000 UT 35, ¶ 17, 999 P.2d 7; State v. White, 880 P.2d 18, 21 (Utah Ct.
App. 1994))).
¶37 We agree with the State. Even assuming for purposes of
appeal that Detective Faulkner’s testimony about the percentage of
cases involving delayed reporting was inadmissible, Wright has
not demonstrated any harm that resulted from its admission.
Wright argues that because the jury acquitted him of one charge of
aggravated child sexual abuse, it likely would have acquitted him
of the second charge had it not heard Detective Faulkner’s
testimony. Wright does not, however, contend that Detective
Faulkner lacked the knowledge or experience to offer such
information, even conceding that she had investigated
20090643‐CA 22 2013 UT App 142State v. Wright
“[h]undreds” of sexual abuse cases. Nor does he contest the
accuracy of her statement. Indeed, an incidence of “one‐third”
appears to be generally consistent with her testimony that delayed
reporting is not uncommon—testimony that the jury could
properly hear—and the increment of precision it adds to the more
general statement seems too small to undermine the defense in any
material way.5 Without any showing that the admission of
Detective Faulkner’s statement was likely to have unfairly affected
the outcome of the proceedings, we will not disturb the jury’s
verdict, even if the testimony was erroneously admitted.
III. Prosecutor’s Closing Remarks
¶38 Finally, Wright contends that the State engaged in
prosecutorial misconduct during its closing argument. Specifically,
Wright takes issue with the prosecutor’s response to trial counsel’s
contention that Daughter transmuted an innocent touch into an
inappropriate one to help her justify referring to Mother’s fiancé as
“Dad” and to eliminate Wright from her life. Wright’s counsel
argued that Daughter “has gotten exactly what she wants. She is
with the family she wants to be with[ and s]he doesn’t have to see
[Wright].” The prosecutor responded directly to this argument in
rebuttal:
[T]here is absolutely no reason not to believe
[Daughter], who, as I told you before gave you every
single piece of evidence that you need for the
elements of this crime. [Daughter] doesn’t want to
hurt her father. She loved him even after he did
horrible things to her. She just wants him to stop
hurting her. You have the power to make that stop.
5. The statement that only one‐third of the cases involved delayed
reporting, a relatively low percentage, could even be seen as
somewhat helpful to the defense because it eliminated any
speculation that “not uncommon” might be a significantly greater
proportion.
20090643‐CA 23 2013 UT App 142State v. Wright
Wright argues that these remarks were improper because they
“divert[ed] the jury from its duty to decide the case on the
evidence.” See State v. Todd, 2007 UT App 349, ¶ 18, 173 P.3d 170(citation and internal quotation marks omitted). He further
contends that the final statement is the most damaging because it
was “‘designed to appeal to the jurors’ sentiments by charging the
jury to convict [Wright] in order to ensure [Daughter’s] safety.’”
(First alteration in original.) (Quoting State v. Tosh, 91 P.3d 1204,
1212 (Kan. 2004).) The State counters that Wright opened the door
to such remarks by attributing a specific motive to Daughter that
provoked what amounted to a “fair reply” from the prosecutor. See
United States v. Schwartz, 655 F.2d 140, 142 (8th Cir. 1982) (“It is well
settled that prejudicial error does not result from the improper
remarks made during closing argument when such remarks were
provoked by the opposing counsel. When the defense counsel
chose to open the door on the issue . . . , the counteracting
statement made by the prosecutor fell within the doctrine of fair
reply.” (citation omitted)); United States v. Daniels, 617 F.2d 146, 150
(5th Cir. 1980) (same).
¶39 “Generally speaking, in argument to the jury, counsel for
each side has considerable latitude and may discuss fully from
their viewpoints the evidence and the inferences and deductions
arising therefrom.” State v. Tillman, 750 P.2d 546, 560 (Utah 1987).
However, “[a] prosecutor’s actions and remarks constitute
misconduct that merits reversal if the actions or remarks call to the
attention of the jurors matters they would not be justified in
considering in determining their verdict and, under the
circumstances of the particular case, the error is substantial and
prejudicial . . . .” Id. at 555. “In determining whether a given
statement constitutes prosecutorial misconduct, the statement must
be viewed in light of the totality of the evidence presented at trial.”
State v. Longshaw, 961 P.2d 925, 927 (Utah Ct. App. 1998) (citation
and internal quotation marks omitted).
¶40 We agree with the State that the first four sentences of the
prosecutor’s response fall within the fair reply doctrine. Wright
encouraged the jury to view the facts and inferences from the
20090643‐CA 24 2013 UT App 142State v. Wright
evidence in a manner that supported his theory that Daughter was
mistaken about how Wright had touched her, and in closing
suggested that her mistake had an aspect of calculation to it in that
it furthered her goal of getting Wright out of her life so she could
be “with the family she wants to be with.” In response, the State
was entitled to argue from the evidence at trial that Daughter had
a different motivation for the accusations than simply eliminating
Wright from her life, that is, to protect herself from abuse.
¶41 We agree with Wright, however, that the prosecutor’s final
statement—“You have the power to make that [(the abuse)]
stop.”—is beyond the scope of a fair reply. It does not rebut any
statements made by Wright; instead, the statement calls on the jury
to assume the responsibility of ensuring Daughter’s safety. Such a
statement appeals to the jurors’ emotions by contending that the
jury has a duty to protect the alleged victim—to become her
partisan—which diverts their attention from their legal duty to
impartially apply the law to the facts in order to determine if
Wright had committed the crimes of aggravated sexual abuse of a
child for which he was on trial. See generally Tosh, 91 P.3d at 1212
(noting that asking the jury to protect the victim of sexual abuse
“fell outside the wide latitude afforded a prosecutor” because such
comments are “designed solely to inflame the passions of the jurors
and divert their attention” from the evidence that is intended to
help them decide guilt or innocence). Yet, despite the impropriety
of the prosecutor’s remark, it does not require reversal. As the Utah
Supreme Court stated in State v. Ross, 2007 UT 89, 174 P.3d 628,
The test of whether the remarks made by counsel are
so objectionable as to merit a reversal in a criminal
case is, did the remarks call to the attention of the
jurors matters which they would not be justified in
considering in determining their verdict, and were
they, under the circumstances of the particular case,
probably influenced by those remarks.
. . . . If prosecutorial misconduct is established, the
State must show that the error was harmless beyond
a reasonable doubt.
20090643‐CA 25 2013 UT App 142State v. Wright
Id. ¶ 54 (citation and internal quotation marks omitted) (setting
forth this standard in context of plain error review).6
6. Whether the defendant or the State bears the burden of showing
harm and what the standard of proof is if the burden shifts to the
State (whether harmless beyond a reasonable doubt or some lesser
standard) are questions that we do not resolve because the issue
has not been briefed in a meaningful way and the questions are not
readily resolvable under our current precedent. The Utah Supreme
Court in State v. Ross, 2007 UT 89, 174 P.3d 628, sets forth the
general burden‐shifting principle in a case that involves an instance
of prosecutorial misconduct that did not implicate the defendant’s
fundamental constitutional rights. But without disavowing Ross, a
recent case, State v. Maestas, 2012 UT 46, 299 P.3d 892, seems to call
into question the breadth of Ross’s application. Whereas in Ross, the
prosecutor’s misconduct involved a closing argument that
distorted the evidence related to the question of whether the
defendant’s two charges were part of a single criminal episode,
2007 UT 89, ¶ 56, in Maestas, the prosecutor had commented on the
defendant’s right to remain silent at trial, a significantly deeper
intrusion on the defendant’s fundamental rights, 2012 UT 46, ¶ 161.
And in Maestas, the supreme court seemed to suggest that the
requirement that the state show that the prosecutorial misconduct
was harmless beyond a reasonable doubt applied only when the
error amounted to the infringement of a defendant’s fundamental
rights: “‘[A]n otherwise valid conviction should not be set aside if
the reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable doubt.’”
Id. ¶ 162 (emphasis added) (footnote omitted) (quoting State v.
Tillman, 750 P.2d 546, 555 (Utah 1987), a case also involving a
prosecutor’s remark on the defendant’s choice to remain silent).
Nor does our own precedent simplify the issue. In State v.
King, 2010 UT App 396, 248 P.3d 984, we required the defendant to
shoulder the burden of establishing prejudice from a prosecutor’s
misconduct because the defendant had not objected to the
prosecutor’s remarks at trial, even though Ross itself involved a
similar preservation problem. Id. ¶ 26. In State v. Koslov, 2012 UT
(continued...)
20090643‐CA 26 2013 UT App 142State v. Wright
¶42 “In reviewing whether the jury was influenced by the
[prosecutor’s] statement, we consider the circumstances of the case
as a whole.” State v. Koslov, 2012 UT App 114, ¶ 43, 276 P.3d 1207(citation and internal quotation marks omitted). Wright’s claim on
appeal that the prosecutor committed reversible misconduct is
based on an argument that all five of the contested statements were
improper. Yet, we have concluded that all but one statement
amounted to a fair reply to defense counsel’s own remarks. The
prosecutor’s improper remark was thus only a single sentence
during a closing argument and rebuttal that fills fifteen transcript
pages of otherwise appropriate remarks. But see Tosh, 91 P.3d at
1210–13 (concluding that the prosecutor’s plea to the jury to protect
the victim from further sexual abuse by her father was “intentional
and not done in good faith” when the closing statement also
included a suggestion that the defendant would essentially “‘rape
[the victim] again’” if his version of the events were believed and
a statement that implied that the burden of proof had shifted to the
defendant). And although the misconduct occurred at the close of
6. (...continued)
App 114, 276 P.3d 1207, on the other hand, we acknowledged the
harmless beyond a reasonable doubt standard discussed in Ross
and assumed for purposes of appeal that the burden shifted even
where the defendant did not preserve the issue in the trial court.
2012 UT App 114, ¶ 42 n.9.
In our decision here, in deference to the language of Ross, we
take Koslov’s approach, assuming that the harmless beyond a
reasonable doubt standard applies, even though the challenge to
the error was unpreserved and does not involve a violation of a
fundamental constitutional right, on the basis that “if the State can
show that the error was harmless beyond a reasonable doubt,
Defendant would be unable to establish that the error was
prejudicial” enough to make out a showing of plain error or
ineffective assistance of counsel, in any event. Id. (citation and
internal quotation marks omitted). The questions of when burden‐
shifting occurs in a prosecutorial misconduct case and the
applicable standard for showing harmlessness if it does, however,
remain unsettled and should be addressed in an appropriate case.
20090643‐CA 27 2013 UT App 142State v. Wright
the State’s rebuttal, when Wright had no opportunity to respond,
the court immediately reminded the jury of the importance of the
jury instructions, particularly emphasizing the fact that “lawyers
are advocates and they do represent their clients. And they are
trying to persuade you of their views of the case, what they
advocate. What they tell you, as was just done in opening and
closing, is not evidence.” The court also reiterated that its other
instructions, which included an admonition that the jurors not
allow themselves “to be influenced by sentiment, conjecture,
sympathy, passion, prejudice, or public feeling,” are “all
important” and should be followed by the jury. In the absence of
any circumstances suggesting otherwise, courts presume that the
jury follows such instructions. State v. Menzies, 889 P.2d 393, 401
(Utah 1994). See also, e.g., Carrasco v. Horel, No. C 07‐5666 MMC
(PR), 2011 WL 6181447, at *10 (N.D. Cal. Dec. 13, 2011) (concluding
that although the prosecutor’s statement that the jury has “‘to stand
up to these gangs’” “urged the jury to convict for reasons unrelated
to [the defendant]’s guilt or innocence,” it was not prejudicial
because it was an isolated remark in a “lengthy and otherwise
proper closing argument,” the jury was instructed not to consider
the attorneys’ arguments as evidence, and the other evidence of the
defendant’s guilt was strong); People v. Vigil, No. C037810, 2003 WL
1985221, at *9 (Cal. Ct. App. Apr. 30, 2003) (concluding that the
defendant was not prejudiced by prosecutor’s plea for the jurors to
“‘protect [the victim] in your verdicts. . . . [a]nd . . . tell [defendant]
it’s over. You are not going to hurt this child anymore’” because the
jury was instructed to base its rulings on the facts, not “‘sentiment,
conjecture, sympathy, passion, prejudice, public opinion, or public
feeling’” (first and last alteration in original)).
¶43 Accordingly, we are persuaded that the prosecutor’s
isolated statement to the jury was harmless beyond a reasonable
doubt. Wright’s prosecutorial misconduct claim therefore fails.
IV. Cumulative Error
¶44 Wright contends that even if the errors by the court and
counsel were individually harmless, they cumulatively require
reversal of his conviction. “Under the cumulative error doctrine,
20090643‐CA 28 2013 UT App 142State v. Wright
[appellate courts] will reverse only if the cumulative effect of the
several errors undermines our confidence . . . that a fair trial was
had.” State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (omission in
original) (citation and internal quotation marks omitted). “In
assessing a claim of cumulative error, we consider all the identified
errors, as well as any errors we assume may have occurred.” Id. But
“[i]f the claims are found on appeal to not constitute error, or the
errors are found to be so minor as to result in no harm, the doctrine
will not be applied.” State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d
878 (declining to apply the cumulative error doctrine where the
claims on appeal did not constitute error or were harmless); State
v. Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (determining that there was no
cumulative error where the defendant’s claims either did not
amount to error or were so minor that they did not result in harm);
see also State v. Colwell, 2000 UT 8, ¶ 44, 994 P.2d 177 (stating that
because it had determined that all of the claimed errors had been
properly cured at trial and were therefore not harmful to the
defense, “the cumulative errors d[id] not undermine [the court’s]
confidence that the defendant [had] received a fair trial”).
¶45 We have rejected each of Wright’s numerous claims of error,
concluding that either no error occurred or any error was harmless.
Our assessment does not change when we view the one error and
the one presumed error (the detective’s anecdotal evidence of the
incidence of late reporting and the prosecutor’s statement on
rebuttal) in conjunction with one another. The errors were
relatively minor in the context of the trial as a whole and do not
take on significance when considered together. Accordingly, we do
not find Wright’s cumulative error argument persuasive.
CONCLUSION
¶46 The district court correctly determined that Wright did not
receive ineffective assistance of counsel when his trial attorney
legitimately decided to pursue a mistake defense rather than one
based on fabrication and commensurately limited the evidence and
witnesses he presented. Although we concluded that the
prosecutor’s final remark in closing argument was error and we
20090643‐CA 29 2013 UT App 142State v. Wright
assumed, without deciding, that the admission of Detective
Faulkner’s testimony on the percentage of cases which involved
delayed reporting was error, neither was sufficiently prejudicial to
require reversal, whether considered alone or together.
Accordingly, we affirm Wright’s conviction for aggravated sexual
abuse of a child.
20090643‐CA 30 2013 UT App 142