State v. Jones ( 2020 )

2020 UT App 161THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
NATHANIAL LEE JONES,
Appellant.
Per Curiam Opinion
No. 20190675-CA
Filed December 3, 2020
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 181912021
Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes and Nathan Jack, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, DAVID N. MORTENSEN, and
DIANA HAGEN.
PER CURIAM:
¶1 Nathanial Lee Jones appeals his convictions for
aggravated assault and criminal mischief. Jones claims that “the
district court committed reversible error when it admitted
testimony that bolstered the credibility of the alleged victim and
opined about the weight of the evidence.” We affirm.
BACKGROUND
¶2 After receiving two 911 calls from neighbors reporting a
possible burglary, a police officer (Officer) went to the Victim’s
apartment to investigate. When Officer arrived, he saw that the
door had obviously been forced open from outside. Officer first
State v. Jones
talked to Victim and Jones together in the hallway. Victim
explained that the door was damaged on the previous day, that
the suspect’s name was “Joe,” and that a Chromebook laptop
was missing. Officer testified that “it did not sit right with me
that it happened . . . yesterday” when there had been no police
report filed. When Officer asked Victim and Jones why they had
not called the police, they said it was because they did not have
the serial number of the laptop. The story did not sound credible
to Officer because it was very vague and did not include
information about the laptop that would normally be provided.
¶3 While Jones remained outside, Officer went inside the
apartment with Victim. There was no ransacking or evidence
consistent with burglary. Victim then told Officer “that it was
actually Jones who forced the door open.” Officer testified,
without objection, about his training and experience in collecting
witness statements.
You want to separate the subject involved. You
know, oftentimes people will—don’t want to talk
in front of the other person, if the other person is in
earshot or in eyesight. So a lot of our training in
law enforcement is to separate and even to get out
of eyesight of the two of them, if you can, like
around the corner, just to get the other party to
open up and tell you what’s going on.
¶4 Officer testified that it did not surprise him that Victim’s
story changed when he was alone with her. But he testified that
he still suspected “something was off” because of the way she
continued to wear her sunglasses inside, had her hood pulled
up, and offered only vague details about the claimed burglary.
The court then gave the jury the following cautionary
instruction:
I just want to caution the jury. The testimony that
you heard from the officer is just fine, as far as it
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goes, but neither this officer nor anyone else can
testify about whether another witness is telling the
truth or not. That is solely your job as the jury, to
decide whether another witness is telling the truth.
So he’s not testifying about whether she told him
the truth or told him a lie.
¶5 Officer then testified, without objection, that he told
Victim that he believed she was not telling him the truth, “and I
got a little stern with her and told her to take the sunglasses off.”
Victim had a visible bruise under her eye, which she claimed
was due to falling off a bike. But she disclosed that she and Jones
had gotten into an altercation on November 11, and Jones put his
hands around her neck and took her to the ground.
¶6 On cross-examination, defense counsel asked Officer
about his testimony that he “told the prosecutors that you didn’t
believe she was telling the truth and you were pressing her on
that.” Officer agreed that he was “being a little more forceful”
with Victim and that he “thought she was lying.” Officer also
agreed that when he told Victim to take off her sunglasses, it was
more of a command than a request. He was wearing his full
police uniform. Defense counsel asked what other “directives”
Officer gave to Victim, and Officer stated, “I just told her that I
believed she was lying to me and to stop lying to me and tell me
the truth.” Officer agreed that Victim provided more detailed
information to him after Jones was arrested.
¶7 On redirect examination, the prosecutor asked Officer
why he changed his tone at that point in the conversation.
Officer began a response by stating that “I had received
additional information that substantiated that I wasn’t. . . .” At
that exact point, defense counsel objected. The district court
sustained the objection, directing the jury to “Please disregard
that statement.” When the redirect examination continued,
Officer testified that his training in domestic violence situations
played into his change in tone. “You know, from training and
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experience in domestic violence situations, you’ll get people that
want to protect the other party or they’re afraid. They don’t
want to talk.” Defense counsel objected to this testimony as
constituting speculation. The district court overruled the
objection but gave the following cautionary instruction:
I will overrule the objection, but just caution the
jury consistent with what I told you before, that he
can talk about his training and experience and why
he does certain things, but in terms of assessing
whether or not [Victim] was telling the truth, that’s
your job alone to decide. And neither this witness
nor any other witness can testify about whether
she told the truth or not.
¶8 Following that cautionary instruction, the State continued
its redirect examination of Officer, which included the following:
Q. So if you could, then, just again explain why
you changed your tone and if your training and
experience played into that decision.
A. It did. I changed my tone that she was lying, I
needed her to tell me the truth. I wanted her to take
her sunglasses off. A lot of times the eyes will tell a
lot about somebody and their emotional state. And
with regards to the suspicion from her wearing the
sunglasses inside in the first place.
Q. So what does your training and experience tell
you with respect to interviewing potential
domestic violence victims in terms of what tone
you should use?
A. It’s a case-by-case thing, right. Some victims
won’t talk to you no matter what. Some will talk to
you.
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¶9 Defense counsel again objected, arguing that “additional
information about victims and how they respond . . . is improper
bolstering.” In a bench conference, the prosecutor stated that the
questions were in response to defense counsel’s questions
suggesting Officer put answers into Victim’s mouth. The court
directed the prosecutor to refocus the questions on Officer’s
training and experience. Answering the rephrased question,
Officer testified that when he believed somebody was “not being
truthful,” “it’s common practice for me to get a little more stern,
to say, you know, confront that to say, I know you’re not telling
me—or I believe I know that you’re not telling me the truth, and
to get them to —I guess more like—the stern voice, more like—
more sure that you’re not telling me the truth.”
¶ 10 When the district court later asked if there were other
issues to be addressed, defense counsel stated “concerns about
conclusory statements and improper bolstering from the law
enforcement officer as to whether or not—his sort of belief about
the victim’s truthfulness and comparing that to other victims in
other cases.” The court responded that it had instructed the
State’s counsel to “reframe the line of inquiry regarding why
[Officer] changed his tone in order to indicate that that was sort
of consistent with his training and experience and his practice in
general approaching these kinds of cases” to avoid any
implication that he “was telling the jury that this witness should
or shouldn’t be believed.” The court also had twice instructed
the jury “that neither [Officer] nor any other witness can testify
about whether or not [Victim] testified truthfully or falsely. And
so that message to the jury should have been clear.” Finally, the
district court noted that “both sides asked questions
surrounding why [Officer] changed his tone, why he employed
the interview tactics that he did with respect to” Victim, stating
that “to the extent that that created any sort of an implication
that he was doing something that was improper under the facts
and circumstances of this case, it was appropriate for the State to
ask questions about that as well.”
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¶ 11 Jones later moved for a mistrial, arguing that the
statement that Officer “received additional information that
substantiated what she said” was also improper bolstering of
Victim’s credibility. The district court denied the motion,
reasoning that “[t]his was something that was nipped in the bud
very quickly and the jury was promptly instructed to disregard
his statement. And so I’m going to . . . deny the motion for a
mistrial.” The district court reasoned that promptly instructing
the jury to disregard the statement was sufficient to cure any
prejudice. The court stated, “And it’s true the jury could
speculate about what [additional information Officer received],
but that would only be if they disregard my instruction, and we
presume that they follow those kinds of instructions,” and “they
didn’t hear anything that was specific.”
¶ 12 The jury returned a verdict convicting Jones of
aggravated assault and criminal mischief. Jones timely appealed
his conviction.
ISSUE AND STANDARD OF REVIEW
¶ 13 Jones claims that Officer’s testimony included multiple
instances of improper bolstering and that he preserved these
issues for appeal through “repeated objections.” In fact, Jones
made a timely objection only in response to Officer’s testimony
on redirect examination regarding his interview of Victim. The
first objection was sustained and the second objection was
overruled with a cautionary instruction. “We review preserved
claims challenging the district court's admission of testimony for
an abuse of discretion.” State v. Lewis, 2020 UT App 132, ¶ 15.
Jones did not interpose a timely objection to the remainder of
Officer’s testimony, and we consider those unpreserved claims
only if the defendant identifies an applicable exception to the
preservation rule. See State v. Cegers, 2019 UT App 54, ¶ 17, 440
P.3d 924.
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ANALYSIS
¶ 14 Although rule 608 of the Utah Rules of Evidence “permits
testimony concerning a witness’s general character or reputation
for truthfulness,” it “prohibits any testimony as to a witness’s
truthfulness on a particular occasion.” State v. Adams, 2000 UT
42, ¶ 11, 5 P.3d 642 (quotation simplified). Accordingly,
admission of testimony that bolsters the credibility of another
witness’s testimony on a particular occasion is improper.
Nevertheless, “[t]rial error requires reversal only if a review of
the record persuades the appellate court that without the error
there was a reasonable likelihood of a more favorable result for
the defendant.” State v. Boyle, 2019 UT App 28, ¶ 16, 440 P.3d
720. “A reasonable likelihood of a more favorable outcome exists
when the appellate court’s confidence in the verdict is
undermined.” Id. (quotation simplified).
¶ 15 In State v. Lewis, 2020 UT App 132, this court reviewed
claims of improper bolstering by law enforcement witnesses
who testified about variations in the victim’s multiple accounts
of a sexual assault. Lewis argued the district court erred in
admitting testimony from a police sergeant that he claimed
impermissibly bolstered Victim’s credibility and opined on the
weight of the evidence. See id. ¶ 15. At trial, a police sergeant
testified about his interactions with the victim on the night of the
incident and also testified about his training and experience in
cases involving sexual assault victims, opining that “based on
his training and experience working on between 200 and 300
assault cases, victims’ accounts of an incident commonly vary.”
Id. ¶ 11. Lewis objected that such testimony was “essentially
testifying that any victim who has a story that’s not consistent is
still to be believed.” Id. The district court overruled the objection
because the sergeant could answer “based on his training and
experience.” Id.
¶ 16 In Lewis, we reviewed our former cases of State v. Cegers,
2019 UT App 54, 440 P.3d 924, which found improper bolstering
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where a victim’s high school counselor opined that she did not
believe that the victim had fabricated her allegations; State v.
Stefaniak, 900 P.2d 1094 (Utah Ct. App. 1995), which found
improper bolstering where a social worker stated the victim
“seemed to be quite candid”; and State v. Bragg, 2013 UT App
282, 317 P.3d 452, which found improper bolstering where an
officer testified that the victim appeared “genuine” during her
police interview. Cegars, 2019 UT App 54, ¶¶ 22–26. In contrast,
we noted that the Utah Supreme Court held in State v. Adams,
2000 UT 42, 5 P.3d 642, that there was no improper bolstering
where a psychologist testified regarding a sexual assault victim’s
cognitive ability and opined that it was “probably not likely” she
“could be coached to tell, or was sophisticated enough to make
up, the story alleged [t]here.” Id. ¶ 25.
¶ 17 In Lewis, we concluded that, “[u]like the witnesses in
Cegers, Stefaniak, and Bragg, [the sergeant] did not opine about
Victim’s truthfulness on a particular occasion. Rather, he
testified only that in his professional experience, it is not
uncommon to see variations in the statements of victims who
give multiple accounts of their assault.” Id. ¶ 26. In each of the
cases in which this court held the testimony constituted
“impermissible bolstering,” the testimony “included the
witness’s opinion as to the truthfulness of a witness on a
particular occasion.” Id. (quotation simplified). Like the
testimony in Adams, the testimony at issue in Lewis “did not
directly opine on Victim's credibility” or “offer a subjective
credibility determination that Victim was telling the truth.” Id.
Instead, “[i]t was left to the jury to determine whether Victim
was telling the truth in her differing accounts, informed by the
knowledge that varying accounts are not uncommon in similar
circumstances.” Id.
¶ 18 As in Lewis, here Officer testified regarding his
interviewing techniques for domestic violence victims based
upon his experience and training and did not opine on the
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truthfulness of Victim on a particular occasion. As a result, the
testimony did not run afoul of Rule 608.
¶ 19 Even if Jones could successfully argue that the challenged
testimony violated rule 608, he cannot demonstrate reversible
error unless he demonstrates “that there was an overwhelming
probability that the jury was unable to follow the court’s
instructions, and a strong likelihood that the effect of the
evidence was devastating to him.” State v. Mead, 2001 UT 58,
¶ 50, 27 P.3d 1115 (quotation simplified). In this case, any danger
that the jury might misconstrue Officer’s testimony as vouching
for Victim’s credibility was dispelled by the district court’s
careful cautionary instructions. The district court clearly and
repeatedly instructed the jury that the jury was the sole judge of
witness credibility and no witness could testify regarding
another witness’s credibility.
¶ 20 Jones has not demonstrated that the trial court’s actions
were insufficient to address any claimed prejudice that could
have resulted from Officer’s statements. In sum, there is no
reasonable probability that the jury, given the repeated
instructions, would take Officer’s testimony out of context and
rely on it to draw the prohibited inference that Victim was
telling the truth on a particular occasion.
CONCLUSION
¶ 21 We conclude that there was no error, plain or otherwise,
in the admission of Officer’s testimony. Moreover, even if Jones
could establish a violation of rule 608, the district court’s
cautionary instructions were sufficient to cure any prejudice.
Accordingly, we affirm.
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