State v. Rhodes , 2019 UT App 143 ( 2019 )

2019 UT App 143THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RICHARD DREW RHODES,
Appellant.
Opinion
No. 20170064-CA
Filed August 22, 2019
Second District Court, Ogden Department
The Honorable Joseph Bean
No. 151900727
Emily Adams and Cherise M. Bacalski, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
APPLEBY, Judge:
¶1 Richard Drew Rhodes appeals his convictions for one
count of aggravated sexual abuse of a child and four counts of
sodomy upon a child and raises three issues on appeal. First, he
argues the district court erred in excluding evidence under rule
412 of the Utah Rules of Evidence. Second, he argues the court
plainly erred in allowing the jury, during its deliberations, to
view the victim’s (Child) interview at the Children’s Justice
Center (CJC). Finally, he argues his trial counsel was ineffective
for failing to call a helpful defense witness; Rhodes filed a rule
23B motion under the Utah Rules of Appellate Procedure to
State v. Rhodes
supplement the record regarding this claim. We deny Rhodes’s
rule 23B motion and affirm his convictions.
BACKGROUND
The Abuse
¶2 Child was raised by his grandmother (Grandmother) who
had custody of him because his mother (Mother) struggled with
drug addiction. Grandmother often worked late and had her
daughter (Aunt) look after Child. Child slept at Aunt’s house
when she took care of him. Three of Aunt’s four roommates,
including Rhodes, were registered sex offenders. When Child
visited Aunt’s house, Rhodes helped look after him. Rhodes took
Child to the movies, out to eat, and to the arcade. Rhodes bought
Child clothes, toys, video games, food, and candy. Rhodes began
to hold himself out as Child’s father-figure.
¶3 Rhodes also became close with Grandmother and she
thought of him as a family friend. She did not know Rhodes was
a registered sex offender and thought Rhodes was someone she
could trust to take care of Child. Rhodes even started calling
Grandmother “Mom.” After Rhodes cultivated this relationship,
Grandmother sometimes asked him to babysit Child when Aunt
was unavailable. Child stayed with Aunt or Rhodes a couple of
nights a week. When Child stayed at the house Rhodes often had
Child sleep with him in the same bed.
¶4 The other roommates noticed that Rhodes was possessive
of Child and spent all of his time with Child when Child came
over to the house. The roommates saw Rhodes “cuddle” Child
on the couch and “spoon while [they] were watching a movie, or
lay in the bed together.” When Rhodes had Child in his
bedroom, he would often shut the door. While in the bedroom
together Rhodes showed Child pornography. Rhodes also
performed oral sex on Child and made Child perform oral sex on
20170064-CA 2 2019 UT App 143State v. Rhodes
him. Child remembered this happening more than fifteen times
throughout the years he spent at the house.
¶5 At some point, Grandmother learned that Rhodes was a
registered sex offender and called Aunt. Rhodes went to
Grandmother’s house and told her he thought she knew about it.
Rhodes told her that when he was eighteen, he had a boyfriend
who was sixteen or seventeen and when his boyfriend’s parents
found out about the relationship, they “turned [Rhodes] in.”
Grandmother believed this story and continued to allow Child to
go to the house. But what Rhodes told her was untrue and
Grandmother testified that if she had known the “real story” she
would not have permitted Child return to the home. What
Rhodes did not tell Grandmother was that he was convicted for
sexually abusing a ten-year-old girl when he was seventeen. He
also did not disclose that he was convicted for sexually abusing a
thirteen-year-old boy a few years later. He was initially placed
on probation, but he violated it and was sent to prison. Shortly
after he was released from prison, he moved into the house with
Aunt and began interacting with and abusing Child.
¶6 One day in 2013, Child was playing video games at the
house and Rhodes walked in and told him it was time for bed.
Rhodes set up a “pull-out couch” and told Child to come sleep
with him and “spoon[ed]” Child. Child’s great-aunt (Great-aunt)
came upon Rhodes and Child, and the way the two were
positioned made her feel uncomfortable. Great-aunt took Child
away from Rhodes and put him in Aunt’s room. Rhodes went to
Aunt’s room and asked why he was not allowed to sleep with
Child. Aunt told him she “didn’t think it was right the way
[Rhodes] was . . . holding him in the bed.” The next morning
Great-aunt called Grandmother because she was worried about
this incident. Grandmother came to pick up Child and he
“jumped into the backseat [of Grandmother’s car and] locked all
the doors.” On the ride home Grandmother asked Child if
something was wrong. Grandmother told Child that “if anybody
20170064-CA 3 2019 UT App 143State v. Rhodes
does or says anything to make [him] feel uncomfortable,” he
could tell her about it. Child asked, “Even if it means they are
going to go to prison?” Grandmother said yes and asked him
again if anyone made him feel uncomfortable. Child thought for
a minute, then said “no.”
¶7 At the time Child was seeing a therapist for abandonment
issues with Mother. Child had an appointment a few days after
the spooning incident and Grandmother let the therapist know
she was concerned that Rhodes was sexually abusing Child. The
therapist told Grandmother to report the abuse to the police and
the two came up with a safety plan for Child.
¶8 Several days later, a neighbor found Child naked with her
eleven-year-old son. Child had suggested that the two play a
“game big people” play. Child told his friend they needed to
remove their clothes to play, which they did, and then they
touched each other’s penis and anus. The incident was reported
to Child’s therapist and the Division of Child and Family
Services (DCFS) got involved.1 The DCFS report described the
incident with the neighborhood friend and also mentioned that
an adult male had been taking Child to movies and providing
Child with gifts. It stated that the man was a family friend and
that Child had not disclosed any sexual abuse by him.
¶9 A DCFS investigator spoke to Grandmother and Aunt
and learned about Rhodes’s relationship with Child. They
disclosed the spooning incident with Rhodes and the incident
with the neighborhood friend. DCFS arranged for Child to be
interviewed at the CJC. During the interview Child did not
disclose any abuse. DCFS closed the investigation because the
perpetrator of the alleged abuse remained unknown.
1. The record does not show who contacted DCFS.
20170064-CA 4 2019 UT App 143State v. Rhodes
¶10 In 2015, Child got a cell phone for Christmas. Mother,
who was now living with Child and Grandmother, caught Child
looking at pornography on the phone. She asked him where he
learned about pornography and he told her Rhodes showed it to
him. A couple of months later, Mother observed Child watching
pornography again and asked him why. Child responded that he
could not “get out of his head what [Rhodes] did to him.”
Mother asked him what that was and Child responded that
Rhodes touched him. He told Mother that Rhodes made him lie
down on the bed and that they performed oral sex on each other.
¶11 Grandmother learned about Child’s disclosure to Mother
and asked whether he wanted to talk to the detective he spoke to
at the CJC and Child responded that he was “ready to tell.”
Child met with the detective for a second CJC interview and
disclosed that Rhodes made him watch pornography, touched
his penis, performed oral sex on him, and made Child perform
oral sex on Rhodes.
The Proceedings
¶12 After Child’s second CJC interview in 2015, the State
charged Rhodes with one count of aggravated sexual abuse of a
child and four counts of sodomy upon a child.
¶13 Prior to trial Rhodes sought to admit evidence of the
incident with the neighborhood boy under an exception to rule
412 of the Utah Rules of Evidence (412 Evidence), which
generally prohibits the use of evidence of a victim’s other sexual
behavior. He argued that the 412 Evidence was admissible under
the exception in rule 412(b)(3) because excluding the evidence
would violate his constitutional right to present a defense.
Specifically, he argued that a significant portion of his defense
was that Child was abused by someone other than himself. The
State responded by arguing that Rhodes could present this
defense through other means without bringing in the 412
Evidence. The district court ruled that the 412 Evidence was
20170064-CA 5 2019 UT App 143State v. Rhodes
inadmissible and that Rhodes was required to do more than
show that it would be “helpful” to his defense. It concluded that
Rhodes’s claims of Child being confused about the identity of his
perpetrator were speculative and agreed with the State that
Rhodes could present this defense through other means.
¶14 During trial, Grandmother testified on direct examination
about her reaction to the spooning incident in 2013 and stated
that she let his therapist know she was worried he was being
sexually abused.
State: Did you make the counselor aware of
anything?
Grandmother: Yes. [Child] just happened to have
an appointment, I believe it was two or three days
[after the spooning incident]. And I let his therapist
know.
State: Okay. Now did you contact law
enforcement?
Grandmother: I did not.
State: Why not?
Grandmother: Because I didn’t know anything for
certain. [Child] had not told me anything.
State: Okay. Are you aware of whether or not
[Child] told anybody else?
Grandmother: He told . . . his therapist.
State: He told his therapist[?]
Grandmother: Uh-huh [affirmative].
20170064-CA 6 2019 UT App 143State v. Rhodes
¶15 Rhodes did not object to this testimony. Then,
when Rhodes was cross-examining a detective about
what prompted the 2013 investigation, the State asked for a
bench conference and argued that the questioning risked
violating the court’s order regarding the 412 Evidence. In
response, Rhodes argued that after Grandmother’s testimony,
the jury was “left with a misimpression as to how [the 2013]
investigation began.” Rhodes argued that he could stay within
the bounds of the court’s order while signaling to the jury that
“an independent investigation was underway on an unrelated
matter, and that [Rhodes’s] name came up” but that he was later
excluded as a suspect and the case was closed. The State argued
in response that the 2013 investigation was not independent and
was initiated, in part, because “Rhodes was caught spooning
[Child]” and that starting to introduce “some independent
investigation [will be] misleading to the jury.” The court ruled
that the only evidence Rhodes could elicit about what prompted
the 2013 investigation would be testimony that “the
investigation was initiated based on a report of inappropriate
touching.”
¶16 At trial, the two CJC interviews were played for the
jury and admitted as exhibits. The court advised the jury of
the admission of the interviews and told it that it would be
able to re-watch them during its deliberations. Rhodes did not
object. During closing arguments, Rhodes argued that the
reliability of the second CJC interview from 2015 was “[v]ery,
very poor” and he highlighted several concerns he had with it.
He repeatedly urged the jury to watch the interviews carefully
during its deliberations and stated, “I strongly encourage
you, watch the videos. Take your own notes. Stop it. Rewind it.
Look at it again.” He emphasized that the jury should “[l]ook at
the whole thing. Look at both videos” and “[l]isten carefully.”
The State also emphasized to the jury the importance of
watching the interviews and told it to focus on how Child
“behaved” in them.
20170064-CA 7 2019 UT App 143State v. Rhodes
¶17 At the end of trial, the court was discussing timing with
the parties and Rhodes requested it not send the jury back to
deliberate that evening because he did not want it to “make a
quick decision.” He added that he wanted the jury “to watch the
video and do other things. And to pressure them into doing that
tonight I think works unfairly against [Rhodes].” The parties
agreed to complete closing arguments in the afternoon and call
the jury back the following morning for deliberations. Before
deliberations, the court arranged for the jury to have a computer
so it could watch the interviews.
¶18 The jury found Rhodes guilty on all counts. The court
sentenced Rhodes to fifteen years to life on the aggravated
sexual abuse charge and twenty five years to life on each
sodomy charge, running consecutively. Rhodes appeals.
ISSUES AND STANDARDS OF REVIEW
¶19 Rhodes raises three issues on appeal. First, he argues the
district court erred in excluding the 412 Evidence. “[A] trial
court’s decision to admit or exclude evidence under rule 412 is
reviewed under an abuse of discretion standard.” State v. Beverly,
2018 UT 60, ¶ 23, 435 P.3d 160. He also argues his counsel was
ineffective for failing to object to Grandmother’s testimony,
which he claims created a misimpression that Child disclosed
the abuse to his therapist in 2013. “An ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law.” State v. Lane, 2019 UT App 86, ¶ 15, 444 P.3d
553 (quotation simplified).
¶20 Second, Rhodes argues the district court plainly erred in
allowing the jury to view the CJC interviews during its
deliberations. But we decline to conduct a plain error review
because Rhodes’s trial counsel invited the error by stipulating to
the admission of the interview and emphasizing the importance
of allowing the jury to review it during its deliberations. See State
20170064-CA 8 2019 UT App 143State v. Rhodes
v. Ring, 2018 UT 19, ¶ 16, 424 P.3d 845 (declining to conduct a
plain error review when the parties invited the court to commit
an error).
¶21 Third, Rhodes argues his trial counsel was ineffective for
failing to call a helpful defense witness and requests a temporary
remand under rule 23B of the Utah Rules of Appellate Procedure
to supplement the record with evidence to support this claim. In
determining whether a rule 23B remand is appropriate, we
assess whether Rhodes has made “a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.”
State v. Dominguez, 2019 UT App 116, ¶ 14 (quotation simplified).
ANALYSIS
I. Rule 412 Evidence
¶22 Rhodes makes two arguments regarding the exclusion of
the 412 Evidence. First, he argues the district court abused its
discretion in excluding the 412 Evidence before trial. Second, he
argues his counsel was ineffective for failing to object to
Grandmother’s testimony, which he contends erroneously
suggested that Child disclosed the abuse to his therapist in 2013.
A. Pre-trial Ruling
¶23 Rhodes first argues that the district court erred in refusing
to grant his motion to admit evidence of the incident with the
neighborhood boy under rule 412 of the Utah Rules of Evidence.
This rule provides that “evidence offered to prove that a victim
engaged in other sexual behavior” or “evidence offered to prove
a victim’s sexual predisposition” “is not admissible in a criminal
proceeding involving alleged sexual misconduct.” Utah R. Evid.
412(a). Rule 412 exists to avoid “humiliating the accuser,
discouraging victims from reporting sexual crimes against them,
20170064-CA 9 2019 UT App 143State v. Rhodes
and introducing irrelevant and collateral issues that may confuse
or distract the jury.” State v. Tarrats, 2005 UT 50, ¶ 24, 122 P.3d
581. These policies “are strongly implicated when the
complainant is a child.” State v. Marks, 2011 UT App 262, ¶ 50,
262 P.3d 13.
¶24 An exception to the rule 412 bar on admitting evidence of
a victim’s prior sexual activity applies if “exclusion would
violate the defendant’s constitutional rights,” Utah R. Evid.
412(b)(3), which includes the Sixth Amendment right to present
a defense, State v. Thornton, 2017 UT 9, ¶ 74, 391 P.3d 1016. But
this right “is far from absolute.” Id. ¶ 76. The defendant must
articulate why the evidence is “essential to the presentation of a
defense,” id. ¶ 78, and why excluding it would be “arbitrary or
disproportionate to the purposes [rule 412] is designed to serve,”
id. ¶ 77 (quotation simplified).
¶25 In this case, Rhodes argues that the 412 Evidence was
essential to his defense because it would show Child was abused
by someone other than Rhodes. In the motion to admit the
evidence Rhodes argued that “a significant part of [Rhodes’s]
defense is that [Child] was indeed abused in 2013” but by
someone else. 2
2. Rhodes also argues on appeal that the 412 Evidence would
provide “an alternate explanation for [Child’s] advanced sexual
knowledge and behavior” otherwise known as the “sexual
innocence inference.” But this theory was never advanced at
trial. Evidence of Child viewing pornography was introduced so
the State never argued that the jury should infer that Child’s
advanced sexual knowledge could come only from his
encounters with Rhodes. We reject Rhodes’s argument regarding
the “sexual innocence inference” because “the source of [Child’s]
sexual knowledge was never placed in issue” and “the
(continued…)
20170064-CA 10 2019 UT App 143State v. Rhodes
¶26 The district court ruled that the 412 Evidence was
inadmissible and concluded that Rhodes’s “interpretation of
what would be a constitutional and due process defense would
really render rule 412 . . . meaningless and the specific
limitations of rule 412 or the exceptions to rule 412 meaningless.”
We conclude that the court did not abuse its discretion in
excluding the 412 Evidence.
¶27 The district court ruled that the 412 Evidence was
speculative. When it questioned Rhodes about how the 412
Evidence would show that Child was confused about the
identity of the perpetrator, he responded that the evidence was
“circumstantial.” He stated it would be helpful if there was
“more information about what happened with this event where
the two boys [were] found naked” and that although the
allegations are “at some level conjecture . . . [it] doesn’t mean
[they are] incorrect.” The court concluded there was “no
connection” between the 412 Evidence and the allegations
against Rhodes to show Child confused Rhodes with someone
else.
¶28 We agree the 412 Evidence was too speculative to be
considered “essential” to Rhodes’s defense. The fact that Child
instigated a “game” with another boy his age in which they
(…continued)
prosecutor did not argue that [Child] lacked the sexual
knowledge to fabricate the charges.” State v. Clark, 2009 UT App
252, ¶ 17, 219 P.3d 631.
He also argues the district court “rejected [his] rule 412
motion out-of-hand, without engaging in any kind of analysis
whether [his] constitutional rights required the admission of [the
412 Evidence].” This is not true. The court engaged in a careful
and meaningful analysis of the constitutional arguments made,
as discussed infra ¶¶ 26–29.
20170064-CA 11 2019 UT App 143State v. Rhodes
touched each other’s penis and anus does not support a theory
that Child mistakenly identified Rhodes, an adult male, as
the perpetrator of the charged crimes. Importantly, the incident
involving the other child did not include performing oral sex,
which was the primary allegation against Rhodes. See Marks,
2011 UT App 262, ¶ 40 (“[D]issimilar sexual activity has
little relevance to a child’s ability to fabricate allegations of
sexual abuse against a defendant.”). Rhodes has, at most,
created an inference that Child was involved in other
sexual activity with a male peer. This inference is too speculative
to be considered “essential” to his defense that Child confused
Rhodes with someone else. See Thornton, 2017 UT 9, ¶ 78. To the
contrary, the 412 Evidence is arguably helpful to the State’s case.
The evidence may have supported the inference that Child was
acting out after Rhodes sexually assaulted him—it does not
show that Rhodes did not abuse Child or that he was confused
as to who did.
¶29 Because the 412 Evidence was not essential to Rhodes’s
defense, the district court did not abuse its discretion in finding
that its exclusion did not violate Rhodes’s Sixth Amendment
right to present a defense. Excluding the 412 Evidence in this
case was not arbitrary or disproportionate to rule 412’s purpose
of avoiding “humiliating the accuser, discouraging victims from
reporting sexual crimes against them, and introducing irrelevant
and collateral issues that may confuse or distract the jury.”
Tarrats, 2005 UT 50, ¶ 24.
B. Ineffective Assistance of Counsel
¶30 Next Rhodes argues his counsel was ineffective for failing
to object to what he characterizes as Grandmother’s misleading
testimony at trial. Rhodes contends Grandmother’s testimony
demonstrated “an alternate version of the facts, misleading the
20170064-CA 12 2019 UT App 143State v. Rhodes
jury into believing that [Child] disclosed to his therapist in 2013
that [Rhodes] was his abuser.” 3
¶31 Rhodes argues his trial counsel was ineffective for failing
to object to Grandmother’s testimony. To succeed on his
ineffective assistance of counsel claim, Rhodes must show
“(1) that counsel’s performance was so deficient as to fall below
an objective standard of reasonableness and (2) that but for
counsel’s performance there is a reasonable probability that the
outcome of the trial would have been different.” State v. Lane,
2019 UT App 86, ¶ 31, 444 P.3d 553 (quotation simplified).
3. Rhodes also challenges parts of the detective’s and therapist’s
testimonies as similarly misleading and creating a
misimpression that Rhodes was a suspect in 2013. But as the
State correctly points out, these allegedly “misleading”
statements were elicited by Rhodes. First, while Rhodes was
examining the therapist, the therapist disclosed that
Grandmother said she thought Rhodes was sexually abusing
Child in 2013. Next, Rhodes complains that during his cross-
examination of the detective, the detective testified that he
received a report in 2013 of “allegations of inappropriate
touching.” First, these statements are not misleading. Second, we
agree with the State that Rhodes cannot elicit potentially
problematic testimony and then claim it requires admission of
the 412 Evidence to correct the error. See State v. Barney, 681 P.2d
1230, 1231 (Utah 1984) (holding that the “defendant is in no
position to request a mistrial” when the “disputed statement was
elicited, not by the prosecution, but by defense counsel on cross-
examination”). On appeal, Rhodes does not argue that his trial
counsel was ineffective for eliciting these statements and
therefore we focus our analysis solely on Grandmother’s
statements.
20170064-CA 13 2019 UT App 143State v. Rhodes
¶32 Rhodes fails to meet the first prong of his ineffective
assistance claim. His counsel did not render deficient
performance for failing to object to Grandmother’s statements
because he subsequently asked the court to clarify her
statements and the “misimpression” that the 2013 investigation
began in response to Child’s disclosure to his therapist that
Rhodes sexually abused him. Rhodes’s counsel told the court he
did not need to introduce the 412 Evidence but could correct this
misunderstanding by stating that “an independent investigation
was underway on an unrelated matter, and that [Rhodes’s] name
came up.” He argued that this information “would give the jury
the correct information as to how the investigation started.” The
court denied this request and Rhodes has not challenged this
ruling on appeal. 4
4. We note that Rhodes also fails to meet the second prong. See
State v. Lane, 2019 UT App 86, ¶ 31, 444 P.3d 553 (the defendant
must show that “but for counsel’s [deficient] performance there
is a reasonable probability that the outcome of the trial would
have been different” (quotation simplified)). There is no
reasonable probability that the outcome of trial would have been
different if Rhodes had been able to argue to the jury that the
2013 investigation began because of an “unrelated matter” or if
counsel had been able to introduce the 412 Evidence. First, the
2013 investigation clearly implicated Rhodes and it was not an
unrelated investigation. The 2013 investigation was launched
after allegations involving two potential perpetrators: an
“unknown male” (who was later identified as Rhodes) and “a
neighborhood boy.” Second, neither the State nor Rhodes placed
any emphasis on Grandmother’s allegedly misleading
statements. In closing arguments, the State acknowledged that
Child did not disclose the abuse in 2013 and gave the jury
theories about why Child waited until 2015 to disclose the abuse.
(continued…)
20170064-CA 14 2019 UT App 143State v. Rhodes
II. CJC Interviews
¶33 Rhodes also argues the district court plainly erred in
allowing the jury, during its deliberations, to view the CJC
interviews. To demonstrate plain error on appeal, the appellant
must show “the existence of a harmful error that should have
been obvious to the district court.” State v. Gallegos, 2018 UT App
112, ¶ 12, 427 P.3d 578 (quotation simplified).
¶34 Rhodes argues the error in sending the interviews to the
jury room during deliberations should have been obvious to the
district court because our case law clearly explains that the jury
should not have access to testimonial exhibits during
deliberations. (Citing State v. Cruz, 2016 UT App 234, ¶¶ 36–41,
387 P.3d 618 (holding that video recordings of children’s CJC
interviews are not allowed in jury deliberations).)
¶35 “Under the invited error doctrine, we decline to engage in
plain error review when counsel made an affirmative statement
that led the court to commit the error.” State v. Ring, 2018 UT 19,
¶ 20, 424 P.3d 845 (quotation simplified). 5 Rhodes’s counsel told
the court he thought it was important for the jury to watch the
interviews during its deliberations and wanted to make sure it
had plenty of time to do so. Rhodes’s counsel also repeatedly
emphasized to the jury the importance of re-watching the
interviews during deliberations. Based on the record before us, it
(…continued)
The defense also highlighted the fact that Child did not disclose
the abuse until 2015.
5. We note that while it is generally true that testimonial
evidence should not be sent back with the jury during
deliberations, it is not an error for the court to send this evidence
back when the parties stipulate to it.
20170064-CA 15 2019 UT App 143State v. Rhodes
is clear that a significant portion of Rhodes’s trial strategy was to
attack the credibility of the allegations Child made in the 2015
interview and as a result, counsel made affirmative statements
regarding the importance of re-watching the videos during
deliberations as part of a sound trial strategy. See State v. Bedell,
2014 UT 1, ¶ 26, 322 P.3d 697 (holding that “plain error does not
exist when a conceivable strategic purpose exists to support the
use of the evidence” because courts “should take measures to
avoid interfering with potential legal strategy or creating an
impression of a lack of neutrality” (quotation simplified)).
¶36 The court did not plainly err in allowing the jury to view
the CJC interviews when Rhodes affirmatively urged it to do so
in accordance with a sound trial strategy.
III. Rule 23B Remand
¶37 Finally, Rhodes contends his trial counsel was ineffective
for failing to call helpful defense witnesses. Rhodes contends
trial counsel should have called one of Rhodes’s roommates
(Roommate) and one of his employers (Employer). Rhodes
contends Roommate would have “testified that he was
[Rhodes’s] roommate for about 90 days in 2012.” And he would
have testified that he was “home on Friday, Saturday, and
Sunday nights” and that during that time “he never saw Rhodes
with any children.” According to Rhodes, his trial counsel never
contacted Roommate. Rhodes contends his counsel never
contacted Employer either, and that Employer would have
testified that Rhodes worked for Employer’s “asphalt business.”
Employer would have testified that “[a]sphalt is a seasonal
business” and his employees “worked summers . . . till nightfall
every day except Sunday.” Further “Rhodes had to work every
Friday and Saturday” and in the summer, workers “would clock
out around 11 pm.”
¶38 Because the record does not contain the purportedly
“helpful” testimony from these witnesses, we are unable to fully
20170064-CA 16 2019 UT App 143State v. Rhodes
review this claim on appeal and Rhodes asks that we remand the
case under rule 23B of the Utah Rules of Appellate Procedure
“for entry of findings of fact, necessary for the . . . determination
of a claim of ineffective assistance of counsel” on appeal. Utah R.
App. P. 23B(a). To obtain a remand, Rhodes must make “a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Id.¶39 In this case, the factual allegations, even if true, would not
support a determination that Rhodes’s trial counsel was
deficient. To show deficient performance, Rhodes “must
overcome the strong presumption that counsel rendered
constitutionally sufficient assistance by showing that counsel’s
conduct fell below an objective standard of reasonableness
under prevailing professional norms.” State v. Bruhn, 2019 UT
App 21, ¶ 15, 438 P.3d 1031 (quotation simplified).
¶40 Rhodes contends his counsel was ineffective for failing to
contact roommate “even though [Rhodes] asked him to contact
[Roommate] and gave [him] an idea of how to find
[Roommate].” He argues that the “complete failure to investigate
[Roommate’s] testimony was ineffective.” Rhodes’s trial counsel
was not deficient in failing to investigate Roommate because he
could have reasonably concluded that Roommate’s testimony
would have provided little value. Based on the affidavits
provided, Rhodes has shown that Roommate lived in the same
house as Rhodes for a ninety-day period in 2012. Even at its best,
this evidence can account only for a ninety-day period and
evidence at trial demonstrated that Rhodes was in contact with
Child for about a two-year period. The record also shows that
Rhodes’s trial counsel largely abandoned the alibi defense at trial
and instead chose to focus on Child’s reliability. This assessment
was not deficient. See State v. Wilcox, 808 P.2d 1028, 1033 (Utah
1991) (stating that an alibi defense is often not “a realistic
20170064-CA 17 2019 UT App 143State v. Rhodes
possibility” when a defendant has “continual contact” with a
child victim over an extended period).
¶41 Rhodes contends his trial counsel was also ineffective for
failing to call Employer “because it helped build [Rhodes’s]
alibi.” Rhodes concedes his counsel did call one of his employers
but that the witness “only gave vague estimates about the
timeframe that Rhodes worked.” He argued Employer could
have “helped” Rhodes build a better alibi. This argument fails
because Rhodes has not demonstrated that Employer would
have been better equipped to testify, more concretely than other
witnesses, when Rhodes worked. He claims that Employer
would have testified generally when his employees worked and
when he would have expected Rhodes was also working. But
Rhodes has not offered a “nonspeculative allegation of facts, not
fully appearing in the record on appeal” to bolster his alibi. Utah
R. App. P. 23B(a) (emphasis added).
¶42 Because Rhodes has failed to demonstrate that his trial
counsel was ineffective for failing to investigate Roommate and
Employer, we deny his motion for a temporary remand under
rule 23B of the Utah Rules of Appellate Procedure.
CONCLUSION
¶43 We conclude that the district court did not abuse its
discretion in excluding the 412 Evidence. Rhodes’s trial counsel
did not render ineffective assistance of counsel in failing to
object to Grandmother’s testimony. Further, any error in
allowing the jury to access Child’s CJC interviews during its
deliberation was invited. Finally, Rhodes has not demonstrated
his counsel rendered ineffective assistance sufficient to warrant a
rule 23B remand. We affirm his convictions.
20170064-CA 18 2019 UT App 143