State v. Bell ( 2018 )

2018 UT App 230THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CALVIN ROGER BELL,
Appellant.
Opinion
No. 20161044-CA
Filed December 20, 2018
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 141905701
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY 1
concurred.
HARRIS, Judge:
¶1 A jury convicted Calvin Roger Bell of sexually abusing his
girlfriend’s three-year-old child (Child). Bell appeals his
conviction, asserting that the trial court made two erroneous
evidentiary rulings that altered the outcome of his trial. We are
unpersuaded by Bell’s arguments, and affirm his convictions.
¶2 In the summer of 2013, while her mother (Mother) was in
a residential drug treatment program, Child disclosed to a staff
1. Judge Kate A. Toomey has resumed the use of her birth name
and is now known as Judge Kate Appleby.
State v. Bell
member there that “her dad” had been “playing sexy” with her.
Child was four years old when she made this disclosure. Child
had had little contact with her biological father, and the man she
referred to as “her dad” was Bell, Mother’s live-in boyfriend.
Shortly thereafter, Mother arranged for Child Protective Services
(CPS) to interview Child. However, Child initially refused to talk
to the detective (Detective) assigned to interview her “because
he was a boy.” Mother later arranged for Child to receive
counseling, specifically counseling for sexual abuse and trauma.
¶3 In January 2014, Child disclosed to Mother that Bell had
once shown her a pornographic video. At that point, Mother
asked CPS to interview Child again, and this time Child agreed
to speak to Detective. Child described, in detail, the
pornographic video that she said Bell showed her. Child also
told Detective that “Dad played sexy with me, and I don’t like
it.” Specifically, Child described two incidents, one in which she
claimed that Bell put his “weenie” on her “no-no” where “pee”
comes out, and another in which she claimed that Bell “pulled
down [her] pants” and put his finger “under [her] bum.”
¶4 After interviewing Child, Detective interviewed Bell, who
confirmed that he lived with Mother and Child around the time
of the alleged abuse. Bell told Detective that Child called him
“Daddy” and that he was the “father figure” in the house. He
also admitted to having pornography on his phone and his
laptop, and told Detective that he and Mother had created
pornographic videos of themselves and that Child had “busted”
him and Mother “having sex a couple of times.” But Bell denied
ever purposefully showing pornography to Child and
vehemently denied her other allegations of sexual abuse.
¶5 Based on Child’s statements, the State charged Bell with
one count of rape of a child, a first-degree felony; one count of
aggravated sexual abuse of a child, a first-degree felony; and one
count of dealing in materials harmful to a minor by an adult, a
third-degree felony.
20161044-CA 2 2018 UT App 230State v. Bell
¶6 Prior to trial, Bell filed a motion seeking production of
Child’s therapy records. Bell noted that Child had undergone
therapy between the time of her first meeting with Detective
(when she refused to speak with him) and her second meeting
with Detective (when she agreed to be interviewed and
identified Bell as her abuser), and argued that Child must have
been coached during therapy. The State opposed the motion,
arguing that Bell had not met his burden of showing that the
records were reasonably certain to contain exculpatory
information. The trial court denied Bell’s motion, stating that his
argument “amounts to no more than speculation.”
¶7 Also prior to trial, the State filed a notice of its intent to
introduce the video recording of Child’s interview with
Detective, pursuant to rule 15.5 of the Utah Rules of Criminal
Procedure. 2 Bell objected, arguing that the State had not met the
requirements of rule 15.5, and asserting that introduction of the
recording would violate his Sixth Amendment right to confront
witnesses. After a hearing, the court ruled that the recording
complied with rule 15.5, and that confrontation was not an issue
so long as Child was available to be cross-examined at trial.
2. Rule 15.5 allows the admission upon motion, in a “case
concerning a charge of child abuse or of a sexual offense against
a child,” of an “oral statement of a victim or other witness
younger than 14 years of age which was recorded prior to the
filing of an information or indictment,” so long as the movant
can demonstrate “good cause” as well as the existence of eight
other specific requirements. See Utah R. Crim. P. 15.5(a). Among
other particulars, the rule requires that both the child and the
person who conducted the interview be available for cross-
examination, that the recording not have been altered, and that
“the court views the recording before it is shown to the jury and
determines that it is sufficiently reliable and trustworthy and
that the interest of justice will best be served by admission of the
statement into evidence.” Id. R. 15.5(a)(8).
20161044-CA 3 2018 UT App 230State v. Bell
¶8 At trial, as its first witness, the State called Child to testify
in person. Child identified Bell and testified that Bell had lived
with her and Mother and that she had called him “Daddy.”
Child described how Bell had shown her a pornographic video,
describing the video in similar detail as she had in her interview
with Detective. Child then stated that after the video, Bell “took
off his clothes, and then . . . he went up and down on me.” Child
also described an incident with Bell where “I was on his lap. He
put his finger like under my butt, and then, like, did his finger
like this,” making a hooking or beckoning motion. After the
State’s direct examination of Child, Bell was able to cross-
examine Child without limitation from the court.
¶9 The State called Detective as its final witness. Detective
testified that, at their first meeting in the summer of 2013, Child
did not want to talk to him, so he did not interview her that day,
but that at their second meeting, in January 2014, she was willing
to talk. Detective described this second interview, and the State
asked the court for permission to play the video recording of the
interview. Bell renewed his previous objection to the recording’s
admission, but did not make any new objections. Over Bell’s
renewed objection, the trial court allowed the State to play the
video recording of Child’s interview.
¶10 Detective also testified about his interview with Bell, and
described some of the questions he had posed and some of the
answers Bell had given. The trial court denied Bell’s request to
play for the jury an audio recording of Bell’s interview with
Detective. On cross-examination, however, the court allowed
Bell’s counsel wide latitude to read from the transcript of the
interview, and counsel asked Detective about many of the
questions he posed and about Bell’s responses. In particular,
Bell’s counsel elicited from Detective the fact that Bell had
vehemently denied Child’s accusations of sexual abuse.
¶11 After Detective’s testimony, the State rested, and Bell took
the stand in his own defense and as his sole witness. Bell again
denied that he had ever sexually abused Child or showed her
20161044-CA 4 2018 UT App 230State v. Bell
pornography. The jury, after deliberation, convicted Bell of
aggravated sexual abuse of a child and dealing in materials
harmful to a minor, but acquitted him of rape of a child.
¶12 Bell now appeals, and asks us to consider two issues. 3
First, he argues that the trial court erred when it declined to
conduct an in camera 4 review of Child’s therapy records under
rule 506 of the Utah Rules of Evidence. “The existence of a
privilege or an exception thereto is a question of law, which we
review for correctness.” McCloud v. State, 2013 UT App 219, ¶ 7,
310 P.3d 767 (quotation simplified). Second, Bell argues that the
trial court erred in admitting into evidence the video recording
of Child’s interview with Detective, both under the
Confrontation Clause of the United States Constitution, as
interpreted by Crawford v. Washington, 541 U.S. 36 (2004), and
because allowing the State to present the recorded interview to
the jury after Child had already testified subjected him to a
“double whammy” that had a “double-barreled impact on the
jury.” Whether hearsay is admissible under Crawford is a
3. In his briefing on appeal, Bell initially raised a third issue,
namely, whether the trial court violated rule 106 of the Utah
Rules of Evidence when it refused to allow him to play for the
jury the audio recording of his interview with Detective. At oral
argument, however, Bell acknowledged that this argument is
foreclosed by the Utah Supreme Court’s recent opinion in State v.
Sanchez, 2018 UT 31, 422 P.3d 866, where the court stated that
“mere testimony about a conversation that happened to also be
recorded is insufficient to trigger rule 106.” Id. ¶ 23. Accordingly,
we do not discuss this issue further.
4. “In camera” is a term that means “in the judge’s private
chambers” or “in the courtroom with all spectators excluded.”
See State v. Peraza, 2018 UT App 68, ¶ 8 n.4, 427 P.3d 276(quotation simplified), cert. granted, 429 P.3d 460 (Utah 2018). In
essence, in camera review refers to a private examination of
documents by a judge out of the view of the parties.
20161044-CA 5 2018 UT App 230State v. Bell
question of law reviewed for correctness. State v. Rhinehart, 2006
UT App 517, ¶ 8, 153 P.3d 830. And “[w]hether the trial court
correctly admitted the videotaped interviews into evidence
pursuant to rule 15.5 [of the Utah Rules of Criminal Procedure]
is a question of law that we review for correctness.” State v. Cruz,
2016 UT App 234, ¶ 16, 387 P.3d 618.
¶13 A defendant seeking in camera review of a victim’s
privileged therapy records under rule 506(d)(1) of the Utah
Rules of Evidence must convince the trial court of three things:
first, that the victim “suffers from a physical, mental, or
emotional condition”; second, that the condition is “an element
of any claim or defense” raised by the parties; and third, that
there is a “reasonable certainty that the mental health records
will contain exculpatory evidence favorable to the defense.” State
v. J.A.L., 2011 UT 27, ¶ 48, 262 P.3d 1 (quotation simplified); see
also Utah R. Evid. 506(d)(1); McCloud, 2013 UT App 219, ¶¶ 10,
14. Even assuming, without deciding, that Bell could meet the
first two requirements, Bell’s argument founders on the third,
because he cannot demonstrate a “reasonable certainty” that the
sought-after records contain exculpatory evidence. 5
¶14 The “reasonable certainty” requirement “is a stringent
test, necessarily requiring some type of extrinsic indication” that
5. In response to Bell’s argument that Utah’s “reasonable
certainty” test for obtaining copies of a victim’s privileged
therapy records is too strict and inconsistent with Pennsylvania v.
Ritchie, 480 U.S. 39 (1987), we note that we are duty-bound to
follow the mandates of our state supreme court, especially when
our supreme court is interpreting the Utah (as opposed to the
Federal) Rules of Evidence. See Ortega v. Ridgewood Estates LLC,
2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by vertical
stare decisis to follow strictly the decisions rendered by the Utah
Supreme Court.” (quotation simplified)). If Bell believes that the
“reasonable certainty” test is inappropriate, he is free to address
that question to the Utah Supreme Court.
20161044-CA 6 2018 UT App 230State v. Bell
the victim’s records contain exculpatory evidence. McCloud, 2013
UT App 219, ¶ 14 (quotation simplified). Indeed, “reasonable
certainty” lies “on the more stringent side of ‘more likely than
not.’” State v. Blake, 2002 UT 113, ¶ 20, 63 P.3d 56. “The difficulty
in meeting this test is deliberate and prudent in light of the
sensitivity of these types of records and the worsening of under-
reporting problems in the absence of a strong privilege.” Id. ¶ 19.
As examples of the sort of “extrinsic indication” that would
satisfy the test, our supreme court has identified “independent
allegations made by others that a victim has recanted, or
extrinsic evidence of some disorder that might lead to
uncertainty regarding a victim’s trustworthiness.” Id. ¶ 22; see
also State v. Worthen, 2009 UT 79, ¶¶ 39–42, 222 P.3d 1144(determining that a defendant had met the test when he
produced other medical records as well as the victim’s own
journal entries that indicated that the victim held an extreme bias
against the defendant).
¶15 Bell provides nothing close to the amount of extrinsic
evidence required to meet the “reasonable certainty” standard.
Indeed, he relies on no extrinsic evidence at all. Instead, he
merely asserts that, because Child initially would not speak to
Detective, then underwent therapy, and then later spoke with
Detective, a “reasonable likelihood exists that something in the
therapy” would be exculpatory and that “[w]hatever intervened
during [therapy] is just as likely to have led to information
which is exculpatory as it is to that which is inculpatory.” This is
insufficient. The fact that a victim was reluctant to speak to law
enforcement before therapy but less reluctant after therapy does
not necessarily raise doubts about the victim’s trustworthiness,
and certainly does not indicate a “reasonable certainty” that
something untoward occurred during the therapy sessions. We
therefore reject Bell’s first argument.
¶16 Bell’s next contention is that the trial court erred when it
allowed the State to play for the jury the video recording of
Child’s interview with Detective. Bell makes two arguments in
this regard. First, he asserts that the court’s decision to allow
20161044-CA 7 2018 UT App 230State v. Bell
introduction of the recorded interview violated his rights under
the Confrontation Clause. The Sixth Amendment of the United
States Constitution guarantees that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend.
VI. In this case, however, Bell had the opportunity to confront
and cross-examine Child. The State called Child as its first
witness, and Bell had full opportunity to cross-examine Child
following the State’s direct examination. Bell offers no indication
that he asked for permission to re-cross Child after the interview
recording was played for the jury; he certainly does not assert
that he was denied an opportunity to ask Child questions at trial
about the recorded interview. Under these circumstances, Bell’s
rights under the Confrontation Clause have not been violated;
indeed, Crawford itself makes clear that “when the declarant
appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial
statements” and “does not bar admission of a statement so long
as the declarant is present at trial to defend or explain it.”
Crawford, 541 U.S. at 59 n.9; see also Cruz, 2016 UT App 234, ¶ 29
(stating that “one who chooses not to cross-examine a witness
cannot complain that he was denied his right to cross-examine or
confront the witness”).
¶17 Finally, Bell argues that the trial court subjected him to a
“double whammy” by allowing the State to play the recorded
interview for the jury after Child had already testified live. Bell
points out that part of the justification for allowing recorded
interviews of child witnesses to be played for juries is to spare
the child witness the trauma of testifying again, and notes that
this justification is not present where the child witness has
already testified. But like the defendant in State v. Burnside, 2016
UT App 224, 387 P3d 570, Bell did not raise this specific objection
below. See id., ¶¶ 9, 44–49 (the State called the victim to testify
first, then later during the interviewer’s testimony the State
played the entire recorded interview, and the defendant
“objected only to the quality of the recording,” and as a result we
reviewed the so-called “double whammy” issue only for plain
20161044-CA 8 2018 UT App 230State v. Bell
error). “In order to preserve an issue for appeal, it must be
specifically raised . . . to a level of consciousness before the trial
court so as to give the trial court an opportunity to address the
claimed error, and if appropriate, correct it.” State v. Bruun, 2017
UT App 182, ¶ 37, 405 P.3d 905 (quotation simplified). Bell’s pre-
trial objections to the video interview were based on the
Confrontation Clause, and on an assertion that the video
recording did not comply with the requirements of rule 15.5 of
the Utah Rules of Criminal Procedure. Bell did not give the trial
court an opportunity to rule on his specific “double whammy”
objection. See State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (“[I]f a
party makes an objection at trial based on one ground, this
objection does not preserve for appeal any alternative grounds
for objection.”). If a defendant “did not preserve his claims
before the trial court, he must establish plain error, ineffective
assistance of counsel, or exceptional circumstances to warrant
review by this court.” State v. Kozlov, 2012 UT App 114, ¶ 28, 276
P.3d 1207. But in this case, Bell does not ask us to review this
issue for plain error, ineffective assistance of counsel, or
exceptional circumstances, and we therefore decline to address
any such arguments. 6 See State v. Morris, 2017 UT App 112, ¶ 12
n.5, 400 P.3d 1183. 7
¶18 Affirmed.
6. We also note that, in Burnside, we determined that the trial
court had not plainly erred under similar circumstances by
allowing the presentation of a video-recorded interview after the
victim had already testified. See State v. Burnside, 2016 UT App
224, ¶ 48, 387 P.3d 570.
7. Bell also asks us to apply the cumulative error doctrine, but
such an argument is only considered “when this court has
determined that multiple errors occurred below.” State v. King,
2017 UT App 43, ¶ 15, 392 P.3d 997. Because we find no error in
the trial court proceedings, we need not further address Bell’s
cumulative error argument.
20161044-CA 9 2018 UT App 230