State v. Gomez , 801 Utah Adv. Rep. 21 ( 2015 )

2015 UT App 283THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RUDY GOMEZ,
Appellant.
Per Curiam Decision
No. 20150045-CA
Filed November 27, 2015
Fifth District Court, St. George Department
The Honorable Eric A. Ludlow
No. 111501075
Gary G. Kuhlmann and Nicolas D. Turner, Attorneys
for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
JOHN A. PEARCE.
PER CURIAM:
¶1 Rudy Gomez appeals his convictions for three counts of
aggravated sexual abuse of a child, a first degree felony. We
affirm.
¶2 Gomez’s appellate counsel has filed a hybrid brief that
argues a single issue under standard briefing procedures and
two issues under the procedures of Anders v. California, 386 U.S.
738 (1967), as adopted by State v. Clayton, 639 P.2d 168 (Utah
1981). “An Anders brief is in one sense an abbreviated form of a
regular brief, but it is different from a regular brief in that it
must demonstrate that the potentially meritorious issues are
frivolous.” Dunn v. Cook, 791 P.2d 873, 877 (Utah 1990); see also
State v. Gomez
State v. Wells, 2000 UT App 304, ¶ 7, 13 P.3d 1056 (per curiam)
(stating that an Anders brief must brief potential issues identified
by either the defendant or counsel and objectively demonstrate
that the issues presented are frivolous). The Anders portion of the
brief argues that trial counsel was ineffective because (1) he was
not adequately prepared because he did not meet frequently
enough with Gomez and (2) he did not cross-examine the
children’s mother about whether she instructed the children to
falsely accuse Gomez, even after she had denied that assertion in
her direct testimony. The Anders portion of the brief
procedurally complies with Anders and Clayton and “objectively
demonstrate[s] that the issues [raised] are frivolous.” State v.
Flores, 855 P.2d 258, 260 (Utah Ct. App. 1993) (per curiam). Based
upon our independent examination of the record and consistent
with the Anders procedures, we determine that the two issues
raised in the Anders portion of the brief are wholly frivolous, and
we do not consider them further.
¶3 The issue raised by appellate counsel under standard
briefing procedures is whether the district court judge plainly
erred by asking the attorneys to clarify for him what one of the
victims had said during her direct testimony, allegedly alerting
the prosecutor to a defect in the State’s case. In the alternative,
Gomez claims his trial counsel was ineffective in failing to make
a timely objection to the judge’s question. The claim of error
concerns only the incident involving the younger child that
formed the basis for one of Gomez’s three convictions. That
incident was closely related to the incident from the same date
involving the older child. Each child was present during the
incident involving the other.
¶4 The older child testified that while the children were
showering together, Gomez came into the bathroom, removed or
lowered his pants and boxers, and sat on the closed toilet seat.
The older child testified that Gomez pulled the children on top
of him and that he had no pants or boxers on. Gomez placed the
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older child on his lap facing away from him and pushed her up
and down. She testified that her “butt was touching his penis.”
When he was done with the older child, he took the younger
child out of the shower and told the older child to get back in the
shower. The older child testified, “He’d pull her, and then when
he was done with her, he’d pull me out.” The older child did not
remember how many times this happened. The older child did
not see Gomez’s penis, but she felt it. He moved her up and
down on his penis. Her body and his body were touching. The
older child saw him put the younger child on top of him, “then
[she] turned around because [she] knew what he was going to
do to her.”
¶5 The younger child testified that while she was taking a
shower with the older child, Gomez came in to sit on the toilet.
She thought the lid was shut. He pulled his pants down. He
called either her or the older child’s name, but she did not recall
whom he called first. He sat them on his lap, and he had his
boxers and pants down. They were facing away from him. The
younger child testified, “It was kind of like a jump on him that
kept bouncing.” He did that to her and to the older child. When
asked if she felt anything, the younger child nodded her head
yes. When asked if she knew what it was, she gave a “non-verbal
response.”
¶6 This concluded the younger child’s direct testimony
before the lunch recess. After the lunch recess, the younger child
was back on the stand and the prosecutor asked questions “to
clarify a few things.” The younger child clarified that she was
naked when Gomez took her out of the shower. She testified that
she thought “it was his private that touched mine.” He placed
her on his lap and she was “kind of like bouncing on his lap.”
She was not facing him.
¶7 At the start of the next day of trial and while out of the
presence of the jury, Gomez’s counsel moved for a mistrial.
Counsel stated that just before the lunch recess, the trial judge
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stated that he “was not sure if [he] had heard testimony elicited
from the younger child specific to which body parts touched
which body parts.” After the lunch break, the prosecutor
continued the examination of the younger child and asked
questions to clarify her testimony. Gomez’s trial counsel claimed
the inquiry prompted the prosecutor “to establish the elements
of the offense.” Gomez’s counsel argued that the court must
remain independent, and a mistrial should be granted because
the trial court “may have assisted the prosecution in establishing
the elements of at least one count.” The district court denied a
mistrial, stating that “the question was whether or not I missed
any testimony,” that the judge had a concern that “maybe the
jury got the impression that the State was alleging that this was a
rape of a child,” and that the question was outside the presence
of the jury with counsel for both parties present.
¶8 Gomez concedes that there was no timely objection to the
trial judge’s question. Therefore, the issue is raised under a plain
error analysis and, alternatively, based upon a claim that trial
counsel was ineffective in not making a timely objection. 1 On
appeal, Gomez “asserts that the trial court should have remained
impartial, and that assisting the prosecution—on or off the
record, intentionally or otherwise—in establishing an element of
an underlying offense is a violation of” his constitutional rights.
Gomez asserts that the trial court’s question allowed the State to
“address the apparent lack of testimony concerning the element
of which body parts touched [the younger child] in the shower
incident.”
¶9 Gomez argues that the principles stated in State v. Beck,
2007 UT 60, 165 P.3d 1225, support his claim of error. In Beck, the
1. Because we conclude that the trial court did not err and
Gomez was not prejudiced, we need not consider this alternative
ground for review.
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Utah Supreme Court, under plain error review, considered
whether a trial judge’s questioning of the defendant in the
presence of the jury exceeded the permitted range of discretion.
See id. ¶ 7. “Under the plain error analysis, the error alone is not
enough, as it might have been had the claim of error been
preserved and presented on appeal in the normal fashion,”
rather “the error must also have been obvious to the trial court.”
Id. ¶ 11. A trial judge may take an active role in managing a trial,
including questioning witnesses, and “[i]t is only when that
questioning strays into areas, or into a form, that may raise
doubts about the neutrality of the court itself, that it becomes
problematic.” Id. ¶ 14. “[A] judge has discretion to briefly
question witnesses to elicit the truth and clarify facts.” Id. ¶ 17;
see also State v. Mellen, 583 P.2d 46, 48 (Utah 1978) (“[I]t is within
[the trial judge’s] prerogative to ask whatever questions of
witnesses as in his judgment is necessary or desirable to clarify,
explain, or add to the evidence as it relates to the disputed
issues.”). Because the questioning in Beck “went well beyond
what was ‘necessary or desirable to clarify, explain, or add to the
evidence as it relate[d] to the disputed issues,” id. ¶ 20, the
supreme court held that the trial court committed obvious error
“by engaging in extensive questioning of the defendant before
the jury that cast doubt upon her credibility and compromised
the judge’s role as an impartial, neutral official,” id. ¶ 24. Beck
does not support the claim presented in this case that the trial
judge committed any error by seeking clarification of his own
recollection of the younger child’s testimony. The request was
made outside the presence of the jury and was within the court’s
discretion.
¶10 The State also persuasively argues that there was no
prejudice to Gomez from the judge’s question because the
evidence up to that point in the trial was sufficient to establish
the disputed element of the offense for which Gomez was
charged. The State was required to show that “the person
touche[d] the anus, buttocks, or any part of the genitals of the
20150045-CA 5 2015 UT App 283State v. Gomez
minor . . . with the intent to arouse or gratify the sexual desire of
any person.” Utah Code Ann. § 76-5-401.1(2) (LexisNexis Supp.
2014). There is no credible basis for a claim that the State had not
established that Gomez touched the younger child’s buttocks
when he placed that naked child on his own naked lap. After the
lunch break, the younger child clarified that her buttocks made
contact with Gomez’s “private.” That clarification of the facts,
even if it assisted the jury by more accurately describing the
touching, did not supply a previously missing element. The
claim that Gomez was prejudiced because the district court
coached the prosecutor to cure a defect in the case lacks merit.
¶11 Accordingly, we affirm.
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