In re A.O. (D.T.O. v. State) , 2014 UT App 242 ( 2014 )

2014 UT App 242_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.O., A.O., R.O., J.O., E.P.,
AND K.C., PERSONS UNDER EIGHTEEN YEARS OF AGE.
D.T.O.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20130901-CA
Filed October 17, 2014
Second District Juvenile Court, Farmington Department
The Honorable J. Mark Andrus
No. 1068306
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce and Tracy Mills, Guardian ad Litem
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.
ORME, Judge:
¶1 At the conclusion of a child welfare proceeding, the juvenile
court determined that D.T.O. (Father) had neglected the six
children under his care and that he had sexually exploited his then-
seventeen-year-old daughter. Based on these conclusions and the
detailed findings underlying them, the juvenile court placed the
children in the custody of the Division of Child and Family
In re A.O.
Services. Father appeals this adjudication, arguing that the juvenile
court improperly relied on evidence obtained through illegal
searches, that the State’s expert witness should not have been
allowed to testify at trial, and that some evidence admitted by the
court lacked adequate foundation. We affirm.
BACKGROUND1
¶2 During the investigation of a report that Father had
provided cigarettes to some of his children’s teenage friends, one
of the friends told law enforcement officers that Father was trading
alcohol and tobacco for sexually explicit images. Based on this
information, law enforcement officers obtained a warrant to search
Father’s house for “[c]ell phones, computers, electronic devices,
thumb drives, DVDs, CDs or other such items containing images of
known juvenile females (15 years old) in various stages of
undress.” After conducting a search of the residence and collecting
a number of computers, cell phones, thumb drives, and other
electronic devices, law enforcement officers obtained a second
warrant to examine the contents of these devices for evidence of
sexual exploitation of minors. On one thumb drive taken from
Father’s bedroom, investigators found naked self-portraits of
Father’s teenage daughter, naked photos of several unknown girls,
a video of the daughter undressing, and “up-skirt and down-
blouse” style photos of the daughter taken when she was fourteen
years old. This thumb drive also contained images of Father and
sexually explicit images of his wife. Investigators also found over
one hundred images of child pornography on one of the
computers.
1. In reviewing a determination that children have been abused or
neglected, we “recite the facts in a light most favorable to the
juvenile court findings.” See In re L.M., 2001 UT App 314, ¶ 2, 37
P.3d 1188.
20130901-CA 2 2014 UT App 242In re A.O.
¶3 During the child welfare proceeding, Father moved the
juvenile court to suppress all evidence obtained through the search
warrants because, according to him, the search warrants lacked
probable cause.2 Accordingly, he argued, the searches were in
violation of both the United States and Utah constitutions. On this
basis, he contended that the juvenile court should apply the
exclusionary rule, a “judicially created remedy” designed to deter
law enforcement from benefitting from unlawful searches. See
Arizona v. Evans, 514 U.S. 1, 10 (1995). Without reaching the merits
of Father’s probable cause argument, the juvenile court rejected the
motion because it determined that “the exclusionary rule does not
apply except in criminal proceedings or quasi-criminal proceedings
and . . . a child welfare proceeding is not criminal or quasi-
criminal.”
¶4 In addition to physical evidence, the teenage friends testified
that Father fondled their breasts, took nude pictures of them, asked
them to text him sexually explicit images and videos, and showed
them sexually explicit images of their friends that he kept on his
phone. They also explained how Father used his children as
lookouts to prevent his wife—their mother—from discovering
what was happening.
¶5 Later in the proceeding, the State called a forensic examiner
to testify about the evidence recovered from Father’s electronic
devices. Father objected because the forensic examiner appeared to
be offering expert testimony and the State had not provided the
proper notice. The juvenile court sustained Father’s objection and
granted a continuance for the State to remedy the error and to
provide Father with adequate time to prepare. At the time, Father
2. Father also claims that the second search warrant was untimely
executed. Because we determine that the exclusionary rule simply
does not apply in the child welfare context, see infra ¶ 15, “it is
unnecessary to consider in this case whether the searches by police
officers were unreasonable,” see In re A.R., 1999 UT 43, ¶ 23, 982
P.2d 73.
20130901-CA 3 2014 UT App 242In re A.O.
agreed with this curative measure. But when the proceeding was
reconvened, Father moved to have the expert witness excluded
entirely from testifying. Interpreting rule 20A of the Utah Rules of
Juvenile Procedure, the juvenile court rejected Father’s motion, on
the rationale that it had modified the requirements of the rule, as
permitted by the terms of the rule, to provide Father with adequate
notice.
¶6 Near the conclusion of the proceeding, the State’s witnesses
could not testify with certainty about the precise location within
Father’s bedroom where they had found two thumb drives, one of
which contained incriminating evidence. Father objected, arguing
that this confusion created a chain-of-custody problem and that the
evidence should not be admitted. The juvenile court then required
the State to provide additional evidence about the chain of custody.
After hearing the additional evidence, the juvenile court stated,
“It’s true they don’t know if that’s just two thumb drives that came
from the master bedroom closet or from the master bedroom
dresser, but it came from one of the two and so I’ll admit [it].”
¶7 After holding five days of evidentiary hearings over the
course of almost four months, the juvenile court determined,
among other things, that the children in the household were
neglected and that Father had sexually exploited his daughter.3
Accordingly, it granted custody of the children to the Division of
Child and Family Services. Father now appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Father first argues that the searches were in violation of the
Utah Constitution and that the juvenile court erred in refusing to
exclude the evidence obtained in the searches. Whether an
3. According to the State, there is a “parallel criminal investigation”
involving Father’s unlawful activities with his daughter and the
teenage girls who testified against him during the trial in this case.
20130901-CA 4 2014 UT App 242In re A.O.
exclusionary rule based on the Utah Constitution should apply in
child welfare proceedings is a constitutional issue that we review
for correctness. See In re L.M., 2013 UT App 191, ¶ 5, 308 P.3d 553.
¶9 Next, Father argues that the juvenile court misapplied rule
20A of the Utah Rules of Juvenile Procedure when it allowed the
State’s expert witness to testify. The juvenile court’s interpretation
of this rule presents a question of law that we review for
correctness. See In re S.M., 2007 UT 21, ¶ 15, 154 P.3d 835.
¶10 Finally, Father contends that the juvenile court erred by
admitting evidence that lacked proper foundation because of
problems with the chain of custody. We will reverse a court’s
determination that there was proper foundation to admit evidence
only if the court abused its discretion. See State v. Torres, 2003 UT
App 114, ¶ 7, 69 P.3d 314.
ANALYSIS
A. Exclusionary Rule
¶11 Although the Utah Supreme Court, in applying the
requirements of the United States Constitution, has made it clear
that Utah courts should not apply the exclusionary rule in child
welfare proceedings, see In re A.R., 1999 UT 43, ¶ 23, 982 P.2d 73,
Father urges us to fashion a more broadly applicable exclusionary
rule based on the Utah Constitution. We decline to do so.
¶12 Father devotes much of his brief to arguing that although
the language forbidding unlawful searches found in the Utah
Constitution is effectively identical to the language forbidding
unlawful searches found in the United States Constitution, the
historical context peculiar to Utah requires us to read Utah’s ban on
unlawful searches more broadly. Compare Utah Const. art. I, § 14,
with U.S. Const. amend. IV. See Kenneth R. Wallentine, Heeding the
Call: Search and Seizure Jurisprudence Under the Utah Constitution,
20130901-CA 5 2014 UT App 242In re A.O.
Article I, Section 14, 17 J. Contemp. L. 267, 280 (1991). Father is not
without support in this assertion. For example, in State v. Thompson,
810 P.2d 415, 418 (Utah 1991), the Utah Supreme Court held that
under the Utah Constitution a person has “a right to be secure
against unreasonable searches and seizures of their bank
statements,” even though the United States Supreme Court earlier
held in United States v. Miller, 425 U.S. 435, 442 (1976), that under
the federal Constitution there was no “legitimate ‘expectation of
privacy’” in bank statements.
¶13 However, even if we were to adopt Father’s basic reasoning
in this regard, it would not render the juvenile court’s decision
incorrect. Recognizing a more expansive expectation of privacy
under the Utah Constitution would necessarily broaden the
circumstances under which we would determine that searches are
unreasonable, but it would not alter the nature of child welfare
proceedings. As the Utah Supreme Court explained, the
“determination of whether the [exclusionary] rule applies depends
upon the nature of the proceeding rather than the circumstances
under which the evidence was collected.” In re A.R., 1999 UT 43,
¶ 15. So, while our Supreme Court in In re A.R. was concerned only
with the requirements of the federal Constitution, see id. ¶ 14, its
reasoning on the inapplicability of the exclusionary rule to child
welfare proceedings is still on point:
The primary focus of and sole statutory justification
for child protection proceedings is to protect the
interests of children who are neglected or abused. . . .
Although parents may suffer a severe detriment in
losing temporary or permanent custody of their
children, punishment of the parents is not the
purpose of the proceeding.
Id. ¶ 18.
¶14 Not only are a parent’s privacy rights subordinate in a child
welfare proceeding to a child’s safety, but the Utah Supreme Court
20130901-CA 6 2014 UT App 242In re A.O.
has further determined that the relative value of the exclusionary
rule as a deterrent is greatly diminished as well:
There appears to be little likelihood that any
substantial deterrent effect on unlawful police
intrusion would be achieved by applying the
exclusionary rule to child protection proceedings.
Whatever deterrent effect there might be is far
outweighed by the need to provide for the safety and
health of children in peril.
Id. ¶ 21.
¶15 Thus, the nature of a child welfare proceeding remains the
same in relation to the Utah Constitution as it is to the United
States Constitution, and the same reasoning serves to make the
exclusionary rule inapplicable under either analysis, even if the
scope of the constitutional privacy protection is more expansive
under the state constitution. Accordingly, we conclude that the
juvenile court was correct in determining that the exclusionary rule
does not apply in child welfare proceedings under either the
United States or Utah constitution. It was therefore proper for the
juvenile court to deny Father’s motion to suppress the key evidence
against him.
B. Expert Testimony
¶16 Father asserts that the juvenile court erred when it allowed
the State’s expert witness to testify after the State initially failed to
give proper notice under rule 20A of the Utah Rules of Juvenile
Procedure that it would call an expert to testify. Rule 20A requires
that “[a]ny person who has been identified as an expert whose
opinions may be presented at the adjudication trial must be
disclosed by the party intending to present the witness at least ten
days prior to the trial or hearing unless modified by the court.” Utah
R. Juv. P. 20A(h)(1) (emphasis added). Furthermore, a “party may
not present the testimony of an expert witness without complying
20130901-CA 7 2014 UT App 242In re A.O.
with this paragraph (h) unless the court determines that good cause
existed for the failure to disclose.” Id. R. 20A(h)(3). When
construing a procedural rule, “we look to the express language of
that procedural rule and to the cases interpreting it.” First Equity
Fed., Inc. v. Phillips Dev., LC, 2002 UT 56, ¶ 11, 52 P.3d 1137.
¶17 In this case, the State called a forensic examiner to testify
about the evidence he found on a thumb drive and on a computer
taken from Father’s house. Father’s attorney objected that due
notice of expert testimony had not been given, and the juvenile
court sustained the objection. Instead of making a determination
about whether the State had good cause for its failure to give
notice, the juvenile court opted instead to grant a “limited
continuance . . . to allow the State to give proper notice.” At the
time, Father’s attorney agreed with the continuance, stating,
“That’s what I would ask for, Judge.” Accordingly, the State filed
a summary of the expert testimony, leaving Father with the
requisite ten days to review the information and prepare to meet
it. When the proceeding reconvened, Father nevertheless moved to
exclude the expert witness altogether, arguing that there was not
“good cause” for the State’s failure to give Father adequate notice
and, therefore, that the State could not present the testimony. See
Utah R. Juv. P. 20A(h)(3). The juvenile court judge rejected this
motion, stating,
I’m not finding that good cause existed for the State’s
failure to identify [the witness] as an expert witness.
I am finding that I modified the requirement by
granting the continuance so that counsel would have
the ten day’s notice anticipated by the rule and that
ten day’s notice has been provided and so I’ve
modified the rule in that case.
¶18 We agree with the juvenile court’s interpretation of the rule.
Here, the phrase “unless modified by the court” means precisely
what it purports to mean—that the juvenile court can modify the
ten-day notice requirement. By its express terms, rule 20A(h)(1)
20130901-CA 8 2014 UT App 242In re A.O.
gives the juvenile court discretion to adjust the notice requirement.
See Utah R. Juv. P. 20A(h)(1). The juvenile court chose to exercise
this discretion in a substantially fair manner, granting a
continuance so that the State could still present its expert witness
but giving Father ample opportunity to consider the evidence
before being required to meet it. Because we conclude that the
juvenile court acted within the express terms of rule 20A(h)(1) and
modified the notice requirement in an appropriate manner, we
must also conclude that the witness’s testimony ultimately
complied with rule 20A(h). Thus, there was no need for the juvenile
court to also determine, pursuant to rule 20A(h)(3), whether the
State had good cause for failing initially to comply. Thus the
juvenile court was correct to deny Father’s motion to exclude the
expert witness.
C. Chain of Custody
¶19 Finally, Father argues that there was testimonial confusion
about precisely where police had found a thumb drive containing
incriminating evidence and that this confusion rendered the
evidence inadmissible. The Utah Rules of Evidence require that
before a party can introduce an item as evidence, the proponent
must show that the “item is what the proponent claims it is.” Utah
R. Evid. 901(a). Such evidence is generally admissible if the court
is satisfied that the evidence has not been changed or altered. See
State v. Smith, 2012 UT App 370, ¶ 15, 293 P.3d 1148 (dealing with
chain-of-custody issues in a criminal trial).
¶20 In this case, Father’s primary contention is that the chain of
custody of the thumb drive was inadequate, which, he argues,
indicates that the evidence is not necessarily what the State claimed
it was. After the juvenile court found Father’s initial foundational
objection to be well taken, the State presented detailed evidence
about who found the thumb drives, who bagged them, who
photographed them on site, who logged them, who collected them,
who transported them, who checked them out, and who examined
them. Additionally, the State’s expert witness testified about the
20130901-CA 9 2014 UT App 242In re A.O.
measures he took to prevent any tampering or accidental changes
to the thumb drives. In the end, the juvenile court concluded that
the only remaining question was whether the thumb drives, one of
which contained the incriminating evidence, came from Father’s
nightstand or from Father’s closet. Considering all this, it was
entirely reasonable for the juvenile court to conclude that the exact
location did not matter, as both thumb drives came from Father’s
bedroom,4 and that the thumb-drive evidence had not been
changed or altered and that it was what the State claimed it to be.5
Accordingly, the juvenile court was well within its discretion to
admit the thumb-drive evidence.
CONCLUSION
¶21 The exclusionary rule does not apply to child welfare
proceedings under either the United States Constitution or the
Utah Constitution. Therefore, the juvenile court correctly denied
Father’s motion to exclude the evidence obtained through the
search warrants. The juvenile court did not abuse its discretion
when it modified the expert-witness notice requirement under rule
20A of the Utah Rules of Juvenile Procedure. Finally, the juvenile
court did not abuse its discretion in admitting the thumb-drive
4. It is easy to conceive of a situation in which the location at which
each thumb drive was found would matter, such as if one were
found in Father’s nightstand and one were found in the garage or
living room, to which any number of people would have ready
access. In that scenario, it would be critical to know whether the
thumb drive with the incriminating evidence was the one found in
Father’s nightstand or the one found in, say, the garage.
5. Morever, in addition to the incriminating evidence, the thumb
drive contained images of Father and sexually explicit images of his
wife. The State persuasively argues that the content of the thumb
drive itself suggests that the thumb drive did, in fact, belong to
Father.
20130901-CA 10 2014 UT App 242In re A.O.
evidence given the chain-of-custody and other foundational
evidence before it.6
¶22 With the failure of these three legal challenges to the
juvenile court’s disposition, it follows that the decision depriving
Father of custody of the children must be affirmed. For good
reason, Father does not alternatively challenge the sufficiency of
the evidence to support the juvenile court’s findings nor the
adequacy of the findings to sustain its judgment.
¶23 Affirmed.
6. Father also asserts that the cumulative effect of all the alleged
errors warrants a new trial. “Under the cumulative error doctrine,
we 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) (quoting Whitehead v.
American Motors Sales Corp., 801 P.2d 920, 928 (Utah 1990)). Because
we conclude that the juvenile court committed no error, it follows
that the cumulative-error doctrine is inapplicable.
20130901-CA 11 2014 UT App 242