State v. Huey , 2022 UT App 94 ( 2022 )

2022 UT App 94THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DAVID BRADLEY HUEY,
Appellant.
Opinion
No. 20200620-CA
Filed July 29, 2022
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 191400291
Emily Adams and Freyja Johnson,
Attorneys for Appellant
Sean D. Reyes, Nathan H. Jack, and John J. Nielsen,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
RYAN M. HARRIS and JUSTICE DIANA HAGEN concurred.1
ORME, Judge:
¶1 David Bradley Huey appeals his convictions on one count
of rape, two counts of forcible sodomy, two counts of object rape,
and two counts of forcible sexual abuse. Huey argues that the trial
court abused its discretion in denying a requested continuance
and in not excluding the State’s expert witness. He also argues
that his trial counsel was ineffective in not objecting to three
1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on this case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
State v. Huey
alleged instances of hearsay. We reject Huey’s arguments and
affirm.
BACKGROUND2
The Abuse
¶2 In 2019, Huey, a 51-year-old man, was dating a woman
(Mother) who had a 16-year-old daughter (Sadie).3 Huey first met
Sadie when she ran away from home and Mother asked Huey to
help find her. Sadie’s father had recently passed away and Sadie
was going through a difficult time, including running away from
home and getting suspended from school for vaping.
¶3 Mother shared Sadie’s challenges with Huey and told him
that she wanted Sadie to be “safe” and “productive” during her
suspension from school. Mother also informed Huey that Sadie
“had some community service hours to do” as a result of her
suspension. Huey told Mother “that he could sign off [on] her
community service hours . . . because he did Habitat for
Humanity” work and “offered to let her come to work with him.”
Mother agreed, and Huey told her that “he’d keep an eye” on
Sadie.
¶4 Mother dropped Sadie off at Huey’s home the next
morning, a Thursday. Mother told Sadie that Huey was in charge
and that “she was required to do what he said.” After Mother left,
rather than taking Sadie to a Habitat for Humanity worksite,
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
3. Except for Huey, all the names used in this opinion are
pseudonyms.
20200620-CA 2 2022 UT App 94State v. Huey
Huey took Sadie to a mansion where he was refinishing some
cabinets. They worked until around 5:00 p.m. and returned to
Huey’s home. Huey then told Sadie that she “needed to spend the
night because it was the respectful thing to do.” Mother soon
arrived to pick Sadie up, but when Mother told Sadie “it was time
to leave,” Huey told Sadie and Mother that Sadie “was spending
the night.” Mother then offered to spend the night as well, but
Huey “cut her off and said that it was okay and that she should
just leave,” which she did.
¶5 After Mother left, Huey asked Sadie to smoke
methamphetamine. Sadie, who had never used
methamphetamine before, initially refused, but Huey “just kept
asking and asking,” so she eventually gave in. The drug made
Sadie feel “crappy” and energized her so that she was unable to
fall asleep. It also made her unable to “think[] straight” or “make
a decision,” so much so that she “couldn’t even decide what [she]
wanted to eat.”
¶6 That night, while high on methamphetamine, Sadie and
Huey lay in Huey’s bed taking selfies and talking for around “six
or seven hours, just about life.” During this time, Sadie felt “like
[Huey] understood [her].”
¶7 Sadie continued to work with Huey for about a week. She
returned to her home Friday night and Saturday night after work
but spent Sunday through Wednesday morning with Huey at the
worksite and Huey’s home. During this time, Huey had them use
methamphetamine multiple times a day, at both locations. Huey
had Sadie smoke the methamphetamine and ingest it in pill form.
Sadie was essentially “under the influence the whole time” she
was with Huey.
¶8 In addition to having Sadie use methamphetamine, Huey
gradually cut off Sadie’s communication with Mother. His
behavior toward Sadie also became increasingly inappropriate. At
the worksite, Huey began grabbing Sadie’s breasts, buttocks, and
20200620-CA 3 2022 UT App 94State v. Huey
pubic area whenever he walked by her. Sadie told him not to, but
“[h]e wouldn’t say anything,” and it “would . . . happen again.”
Sadie then “just gave up” trying to stop him “[b]ecause it didn’t
seem like there was a use to it.” Huey also “talk[ed] about how he
wanted to play with [Sadie’s] virgin pussy.”
¶9 When Sadie returned home Friday night and Saturday
night, Huey messaged her asking her to send “naked pictures”
and telling her “to run away with him.” Sadie rebuffed both
requests. But Huey “just kept bugging” her, “saying that he
wanted to do stuff to” her because she was a virgin and “that it
would be fun.” Sadie “ignored him” but Huey persisted, telling
her, “Let me do some things to you, . . . you sit back and I’ll do all
the work.”
¶10 When Sadie was at Huey’s home from Sunday through
Wednesday morning, Huey said, “If you’re going to sleep in
someone’s house you sleep in their bed because it’s the respectful
thing to do,” and “it was a rule of his bed that you can’t wear
clothes.” Sadie thought this “was gross” but complied,
explaining, “I was scared to say no, that he was going to tell my
mom about the meth.” One night, while Sadie was lying in bed,
Huey “started dry humping [her] in his sleep.” When he woke up,
Sadie told him what he had done and asked if she could sleep on
the couch. Huey refused and told her to “just let it happen” and
resumed humping her, this time “while he was awake.”
¶11 On multiple occasions, Huey grabbed Sadie’s breasts and
“put his mouth on them,” both over and under her clothes,
leaving behind bruises. And “[m]ore than once,” Huey penetrated
Sadie’s vagina with his finger. The first time occurred when Sadie
was naked in Huey’s bed pursuant to his “rule.” Sadie told Huey
to stop, but he “just kept doing it.” Sadie “was scared and grossed
out” and “just wanted to go home” but did not out of fear that he
would tell Mother of her drug use. On another occasion, Huey
had Sadie lie down on him on the couch with her back against his
20200620-CA 4 2022 UT App 94State v. Huey
chest. He then put his hands down Sadie’s pants and touched the
“outside [and] inside” of Sadie’s vagina. Sadie again “asked him
to stop,” but “like before,” Huey did not “say anything” and
continued. On another occasion, while they were lying in bed,
Huey “put his tongue and his mouth and his lips” on Sadie’s
vagina. Sadie also later told law enforcement that, during this
time, Huey “got close to having sex with her” when he put “his
penis . . . on her vagina” but stopped because Mother called him
at that moment.
¶12 On Wednesday morning, the last day Sadie spent with
Huey, the two again used methamphetamine and Huey again
grabbed Sadie’s breasts and digitally penetrated her vagina. Huey
then wanted to have sex with Sadie but could not get an erection,
so he made Sadie “put [her] hand on it and jerk it.” When this
failed, Huey did it himself until he was erect and then forced his
penis into Sadie’s vagina. While Huey did this, Sadie “didn’t want
to be there anymore” and “said something gross” in order “to
gross him out so he’d kick me out.” She “didn’t . . . just leave”
because she “wasn’t thinking straight” due to the
methamphetamine and “couldn’t really think of a way to leave.”
Huey then called Sadie “a whore.” Sadie responded, “I would
have been better off fucking a stranger,” at which point Huey told
her to leave.
¶13 Sadie then dressed and went to a nearby gas station. She
returned to Huey’s home shortly thereafter, however, to retrieve
her “dad’s necklace and [her] earrings,” which she had forgotten.
After she retrieved those items, she returned to the gas station.
During this time, Sadie called her friend, Jessica, and told her that
she was leaving the home and that Huey had “forced her to do
meth and raped her.” When the phone call ended, Jessica told her
father what Sadie had said, and he called the police.
¶14 While at the gas station, Sadie called another friend,
Randy, and asked him for a ride. Huey then texted Sadie, telling
20200620-CA 5 2022 UT App 94State v. Huey
her, “We can forget about this” and “We can have a good day.”
Sadie did not respond, and Huey headed to the gas station. When
she saw Huey’s car pull into the gas station, Sadie asked a stranger
for a ride. The stranger agreed to help and took Sadie to meet
Randy.
¶15 Randy thought that Sadie was in “a lot of distress,”
“nervous,” and “scared,” and that she was under the influence of
drugs because she was “fidgeting” and “just really high
energetic.” Sadie then asked Randy to drive her to a grocery store
in her hometown. During the drive, Sadie told Randy that Huey
forced her to take methamphetamine and have sex with him,
following which Randy suggested they contact Mother and the
police. Sadie resisted because she was afraid of getting in trouble
for using methamphetamine.
¶16 When they got to Sadie’s hometown, a police officer was
already waiting for Sadie because of Jessica’s father’s earlier
phone call to the police. The officer took Sadie to the hospital for
a sexual assault examination and called Mother to inform her that
Huey had raped Sadie. After learning this information, Mother
called Huey and “asked him if he gave [Sadie] meth.” Huey
admitted that he did. Mother also “asked him if he raped my
daughter.” Huey responded, “I didn’t rape your daughter.”
Mother then “asked him if he had sex with my daughter, and the
only thing he answered” was, “I didn’t rape your daughter.”
¶17 During the sexual assault examination, Sadie disclosed to
the nurse that Huey raped her using “verbal threats or coercion”
but later clarified that “[h]e didn’t threaten, but he tried to
convince me to do things with him.” The nurse then found three
to four lacerations on Sadie’s genitals, which she determined were
“caused by an over-stretching or a stretching force or blunt force
trauma to the area.”
¶18 A toxicology report for Sadie came back positive for
methamphetamine and amphetamine. Male DNA was retrieved
20200620-CA 6 2022 UT App 94State v. Huey
from Sadie’s vagina but not in a sufficient amount to permit
further testing. Finally, male DNA, which was matched to Huey,
was retrieved from Sadie’s breast.
Legal Proceedings
¶19 The State charged Huey with one count of rape, two counts
of forcible sodomy, two counts of object rape, and two counts of
forcible sexual abuse.4 All four of these crimes required the State
to show that Sadie did not consent to the contact. See Utah Code
Ann. §§ 76-5-402, -402.2, -403, -404 (LexisNexis 2017 & Supp.
2021).5 And under Utah’s consent statute, any of these charged
crimes are “without consent of the victim” if, as relevant here,
(1) “the victim is younger than 18 years of age and at the time of
the offense the actor . . . occupied a position of special trust in
relation to the victim”; (2) “the actor knows or reasonably should
know that the victim has a mental disease or defect, which renders
the victim unable to . . . appraise the nature of the act[,] resist the
act[,] understand the possible consequences to the victim’s health
or safety[,] or . . . appraise the nature of the relationship between
the actor and the victim”; (3) “the victim expresses lack of consent
through words or conduct”; or (4) “the victim is 14 years of age or
older, but younger than 18 years of age, and the actor is more than
three years older than the victim and entices or coerces the victim
4. The State also charged Huey with six counts of distribution of a
controlled substance and several counts of sexual exploitation of
a minor. The jury found Huey guilty of the distribution counts,
and Huey does not appeal those convictions. The sexual
exploitation counts were severed from the counts at issue here
and are not part of this appeal.
5. Some of the statutes cited in this opinion have been revised
since the events in this case transpired. Because these revisions
have not materially altered the statutes as concerns this case, we
cite the most recent printed version of the code for convenience.
20200620-CA 7 2022 UT App 94State v. Huey
to submit or participate.” Id. § 76-5-406(2)(a), (f), (j), (k) (Supp.
2021). The jury would also later be instructed on the
lesser-included offense of unlawful sexual conduct with a 16- or
17-year-old, which, unlike the more serious charges, does not
require the State to prove lack of consent because the sexual act
alone is enough for a conviction. See id. § 76-5-401(2).
¶20 As preparation for trial began, the State sent Huey a list of
potential witnesses and exhibits. This list included the name of a
forensic toxicologist (Expert) and toxicology reports for Sadie and
Huey. The State then sent a notice of expert witness advising
Huey of its intent to call Expert at trial. This notice included
Expert’s curriculum vitae and the toxicology reports, and it stated
that Expert’s “proposed testimony would include [his]
qualifications and testimony regarding the Blood Toxicology of
the defendant and the alleged victim.”
¶21 During opening statements at trial, the prosecutor stated
that Expert would opine on “what he calls a ‘naive user’” of
methamphetamine and that “their body doesn’t know how to
break down this methamphetamine very well” because “[i]t’s an
experience it’s never had to deal with . . . before.” The prosecutor
further noted that Expert would explain how “methamphetamine
will stay in a naive user’s body longer, because it’s taking the body
longer to figure out how to get rid of it, versus an experienced
user [whose] body has started to figure out how to get rid of
methamphetamine a lot faster.” Huey’s attorney (Trial Counsel)
did not object at this point.
¶22 Before the State called its first witness, Trial Counsel
complained that the defense had received inadequate notice from
the State regarding Expert’s testimony about naive users. Trial
Counsel argued that he thought Expert “was just going to present
evidence of the drug tests” and would “not [be] interpreting
them.” The trial court deferred ruling on the issue until Expert
was called to testify.
20200620-CA 8 2022 UT App 94State v. Huey
¶23 Later that day, Trial Counsel renewed his objection and
sought a mistrial due to the claimed inadequacy of the notice of
Expert’s testimony. Trial Counsel asked the court to exclude
Expert or, in the alternative, to grant a continuance so he could
prepare to counter Expert’s testimony. Specifically, Trial Counsel
argued, “I haven’t even consulted anybody,” and “based on this
testimony, which I didn’t know was going to be coming out, . . . I
probably would have hired an expert to talk about . . . a naive
drug user.” The prosecutor countered that “testifying about the
general characteristics of methamphetamine and the effects of
methamphetamine upon the body” was simply a part of
toxicology, which Huey had already been put on notice would be
included in Expert’s testimony. The court agreed with the
prosecutor and denied Trial Counsel’s motions for a mistrial,
exclusion of Expert, and a continuance.
¶24 At trial, Sadie, Mother, Jessica, Randy, and Expert were
called as witnesses for the State. They all testified consistent with
the facts previously laid out, but we provide further context
regarding Mother’s, Jessica’s, Randy’s, and Expert’s testimonies
to lay additional groundwork for the issues Huey raises on
appeal.
¶25 While testifying, Mother was asked by the prosecutor
about her call with Huey. Mother explained the call, and the
prosecutor then inquired, “Did he ever say ‘no,’ when you asked
if he had sex with your daughter?” Mother answered, “He never
said, ‘No.’ He just responded and said, ‘I didn’t rape your
daughter.’” Trial Counsel did not object to this exchange.
¶26 During Jessica’s testimony, she explained that Sadie had
called and told her “that she was at David Huey’s house, and that
she was trying to leave because of all of the things that were going
on there.” The prosecutor followed up, “Did she tell you at all
what the things were that were going on there?” Jessica
responded, “She said that he forced her to do meth and raped
20200620-CA 9 2022 UT App 94State v. Huey
her.” The prosecutor then asked, “Did you get into more details
about that?” Jessica responded, “No.” The prosecutor also
inquired about what was going on while she was on the phone
with Sadie. Jessica answered that Sadie “was packing all of her
stuff” and “got out of the house,” and then Jessica “could hear the
cars” and Sadie talk to “some random person” who was giving
her a ride, at which point Sadie hung up. The prosecutor then
asked whether she had any “concerns about [Sadie]” after the
phone call ended. Jessica responded that she did, and the
prosecutor asked, “So what did you do?” Jessica replied, “I told
my dad and he called the cops.”
¶27 During Randy’s testimony, he recounted what he and
Sadie had talked about during their drive. The prosecutor asked
what he “believed to have occurred from [talking to] her.” Randy
responded, “How do I word it. Kind of like I would say forced to
do things . . . not normal—like kids that age should be doing, and
just in general, things that shouldn’t be happening.” The
prosecutor asked if it involved sex, and Randy stated, “If I
remember, yes, I . . . believe so.”
¶28 Finally, during Expert’s testimony, the following exchange
took place:
[Prosecutor]: When you were listing some of the
different factors earlier that can affect the way
methamphetamine is metabolized by a particular
individual, I think you talked about someone’s
experience, their naivete as to use, in what way is
that a factor?
[Expert]: Different drugs react differently. For
methamphetamine, what the factor for naivete
versus not naivete means is the use—the body’s use
of it. I want to qualify what I’m about to say, though.
Methamphetamine as a drug of abuse has not been
studied clinically in humans at high levels.
20200620-CA 10 2022 UT App 94State v. Huey
As such we can only use the low level dosing
which is used for medicinal uses in rat trials; but
because of that, one of the things that they’ve
noticed in rats is that you get a different—basically
the methamphetamine goes to different portions of
the body, depending upon whether you’re naive or
not.
If you’re a naive user, more of it goes to the
brain, less of it goes to the blood.
....
So eventually what it does is it changes the
way that the body reacts to that, and that changes
the distribution of the drug. In some—in some
drugs that can actually result in its being eliminated
faster. Methamphetamine actually just changes
where it’s going to go. Sometimes it goes to the—in
a naive user it’s not used to it and so it goes directly
to the brain; but in an experienced user less of it goes
to the brain and more of it stays in the blood plasma.
¶29 During closing argument, the prosecutor emphasized that
“the heart of the matter” is “consent.” The prosecutor explained
that Sadie could not have consented to any sexual activity for four
independent reasons: (1) because Huey occupied a position of
special trust vis-à-vis Sadie, (2) because Sadie had a “mental
defect” caused by the methamphetamine, (3) because Sadie said
no, and (4) because Huey was more than three years older than
Sadie and coerced her. During Trial Counsel’s closing, he
conceded that there was at least one incident of sexual activity
between Huey and Sadie but encouraged the jury to convict him
of the lesser-included crime of unlawful sexual conduct with a 16-
or 17-year-old because Sadie consented to the sexual activity that
did occur.
20200620-CA 11 2022 UT App 94State v. Huey
¶30 The jury rejected Trial Counsel’s argument and convicted
Huey as charged. Huey appeals.
ISSUES AND STANDARDS OF REVIEW
¶31 Huey raises three issues for our consideration. First, he
challenges the trial court’s denial of his motion for a continuance.
“A district court’s decision to grant or deny a continuance is
discretionary, and we will not reverse such a decision absent a
clear abuse of that discretion.” State v. Peraza, 2020 UT App 173,
¶ 4, 479 P.3d 1139 (quotation simplified).
¶32 Second, Huey argues that the trial court should have
disallowed Expert’s testimony about naive users because that
testimony lacked a sufficiently reliable foundation.6 “We review
the admission of expert testimony . . . under an abuse of discretion
standard.” State v. Lopez, 2018 UT 5, ¶ 18, 417 P.3d 116.
¶33 Third, Huey contends that Trial Counsel provided
ineffective assistance by not objecting to what he characterizes as
inadmissible hearsay testimony offered by Mother, Jessica, and
Randy. “When a claim of ineffective assistance of counsel is raised
for the first time on appeal, there is no lower court ruling to review
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” Layton City v.
Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).
6. The State contends that this issue is unpreserved. Because we
resolve the merits of the claim in the State’s favor, we need not
address this preservation argument. See State v. Kitches, 2021 UT
App 24, ¶ 28, 484 P.3d 415 (“If the merits of a claim can easily be
resolved in favor of the party asserting that the claim was not
preserved, we readily may opt to do so without addressing
preservation.”) (quotation simplified).
20200620-CA 12 2022 UT App 94State v. Huey
ANALYSIS
I. Continuance and Reliability of Expert’s Testimony
¶34 Because Huey’s first two issues relate to Expert, we address
them together. Huey first contends that the trial court abused its
discretion by not granting his motion to continue the trial because
he was not properly notified of Expert’s testimony. Second, he
argues that the court should have excluded Expert’s testimony
due to lack of reliability. But to prevail on either of these issues,
Huey must demonstrate that the court’s rulings prejudiced him,
and he has not done so. See State v. Peraza, 2020 UT 48, ¶ 58, 469
P.3d 1023 (“In general, when a party unsuccessfully requests a
continuance to procure a witness, based not on a particular statute
or rule but pursuant to the court’s inherent authority to manage
the case, the movant must prove prejudice on appeal.”); Utah R.
Crim. P. 30(a) (“Any error, defect, irregularity or variance which
does not affect the substantial rights of a party shall be
disregarded.”). See also State v. Ahmed, 2019 UT App 65, ¶ 17, 441
P.3d 777 (“Our Supreme Court has held that [the prejudice
standard] ordinarily requires a defendant to show that, absent the
[error], there is ‘a reasonable likelihood of a more favorable result
for the defendant.’”) (quoting State v. Knight, 734 P.2d 913, 919
(Utah 1987)).
¶35 Even assuming, without deciding, that the court abused its
discretion in denying a continuance for Huey to find a rebuttal
expert or in admitting Expert’s testimony, there is not a
reasonable likelihood that Huey would have been acquitted given
the evidence the State presented to support its three remaining
theories of non-consent, which were completely unrelated to
Expert’s testimony.7
7. Another reason Huey cannot show prejudice regarding the
denial of his continuance request is that Huey has not, even on
(continued…)
20200620-CA 13 2022 UT App 94State v. Huey
¶36 Here, in addition to the theory that Sadie could not have
consented because she had a “mental defect” caused by the
methamphetamine—which was the only theory Expert’s
appeal, claimed that a competing expert even exists who could
meaningfully counter Expert’s testimony about the effect of
methamphetamine on naive users. Thus, even if the court had
granted Huey’s continuance request, he has not shown that he
could have used that continuance to his advantage and
undermined Expert’s testimony to the point that it likely would
have changed the jury’s verdict.
Additionally, Huey cannot show prejudice on either claim
because Expert’s testimony was not the only testimony
supporting the State’s mental defect theory. Sadie provided ample
testimony about the effect the methamphetamine had on her. She
testified that the drugs made her feel “crappy” and gave her so
much energy that she was unable to fall asleep, made her unable
to “think[] straight,” and made her unable to “make a decision,”
even as simple a decision as what to eat. She also testified that on
the morning Huey raped her, she “didn’t . . . just leave” because
she “wasn’t thinking straight, because of the meth” and “couldn’t
really think of a way to leave.” Sadie further testified that she was
essentially “under the influence” of these drugs, which altered her
mental state, “the whole time” she was with Huey. Huey did not
challenge this testimony below, nor does he on appeal, and thus
he cannot show that Expert’s testimony prejudiced him. This is so
because Sadie’s own testimony provided evidence that Huey
“kn[ew] or reasonably should [have] know[n]” that Sadie had a
“mental . . . defect” that rendered her “unable to . . . appraise the
nature of the [sexual acts perpetrated by Huey,] resist the act[s,]
understand the possible consequences to [her] health or safety[,]
or . . . appraise the nature of the relationship between [Huey] and
[herself].” See Utah Code Ann. § 76-5-406(2)(f) (LexisNexis Supp.
2021). Accordingly, there is not a reasonable probability that
Huey would have received a better result at trial without Expert’s
testimony under the State’s mental defect theory.
20200620-CA 14 2022 UT App 94State v. Huey
testimony went to—the State also presented evidence that Sadie
could not consent because Huey occupied a position of special
trust, because Sadie said no to Huey’s invitations to engage in
sexual activity, and because Huey was more than three years
older than Sadie and had coerced her. Accordingly, because the
jury had three other theories that were well supported by
evidence on which to find that Sadie did not legally consent to the
acts Huey perpetrated, Huey cannot show that there is a
reasonable likelihood that he would have obtained a more
favorable result at trial had Expert been excluded or had his
continuance request been granted. See Knight, 734 P.2d at 919.
¶37 The State’s main theory at trial was that Sadie could not
have consented because she was under 18 years old and Huey
occupied a position of special trust with her. This was the first
theory the prosecutor addressed in closing. Specifically, he stated,
“The main question you’re probably going to be asked to answer
in this case is really how was he able to do this? The answer to
that question is trust. He created a position of special trust for
himself with respect to [Sadie].” Under Utah’s consent statute,
“[a]n act of sexual intercourse, rape, . . . object rape, . . . forcible
sodomy, . . . [or] forcible sexual abuse, . . . is without consent of
the victim” if “the victim is younger than 18 years of age and at
the time of the offense the actor . . . occupied a position of special
trust in relation to the victim.” Utah Code Ann. § 76-5-406(2)(j)
(LexisNexis Supp. 2021). A “[p]osition of special trust” is defined,
among other things, as “any individual in a position of authority
. . . which enables the individual to exercise undue influence over
the child.” Id. § 76-5-404.1(1)(c)(xxii).
¶38 Huey argues that he does not qualify as an individual in a
position of special trust with Sadie under the statute. We disagree.
There was plenty of evidence presented that because Huey was
“in a position of authority” over Sadie, she could not have
consented to the acts Huey perpetrated. Mother testified that she
gave Huey authority over Sadie and that he had control over her
20200620-CA 15 2022 UT App 94State v. Huey
at the worksite and at his home. Mother further testified that she
shared Sadie’s challenges with Huey and entrusted Sadie to his
care because she wanted Sadie to be “safe” and “productive”
during her suspension from school. Mother also testified that
Huey told her that he could “sign off [on Sadie’s] community
service hours . . . because he did Habitat for Humanity” work and
“offered to let her come to work with him.” Mother agreed, and
Huey told her that “he’d keep an eye on her.” When she dropped
her off at Huey’s house, Mother told Sadie that Huey was in
charge and that she had to do what he said. Thus, Huey was
directly responsible for Sadie and Sadie was admonished to
follow his commands, qualifying Huey as an “individual in a
position of authority . . . which enable[d] [Huey] to exercise undue
influence over [Sadie].” See id. See also State v. Rowley, 2008 UT
App 233, ¶ 15, 189 P.3d 109 (holding that evidence supported the
jury’s finding that the defendant, who was the father of the
victim’s best friend, occupied a position of special trust because
the defendant was an “authority figure” and “exercised some
amount of supervision” over the victim during the nights she
spent at the defendant’s home).
¶39 For these reasons, it is not reasonably likely that, had
Expert been excluded or had Huey been granted a continuance to
prepare to meet Expert’s testimony, Huey would have received a
better result at trial.8
¶40 Huey resists this conclusion and argues that he was
prejudiced because the “case hinged on the jury’s assessment of
[Sadie’s] credibility,” which was impeached at trial. He asserts
that Expert’s “testimony rehabilitated [Sadie], and the evidence
8. By focusing on Huey being unable to establish prejudice due to
the State’s well-supported theory that Huey occupied a position
of special trust, we do not mean to imply that there was a paucity
of evidence presented by the State on its other lack-of-consent
theories.
20200620-CA 16 2022 UT App 94State v. Huey
against [him] on the [other] theories of consent was not
overwhelming.” We disagree. As already discussed, there was
plenty of evidence before the jury that Huey occupied a position
of special trust in relation to Sadie, and on this basis Sadie could
not have consented. And we do not view Expert’s testimony as
rehabilitating Sadie’s testimony to any meaningful extent.
¶41 Huey points to two instances at trial where Sadie’s
credibility was called into serious question. First, he points to a
statement Sadie made to a police officer that it was possible that
“it seem[ed] like I was into it” because “every girl react[s] to it, but
he thought I was into it.” And second, he contends that Sadie’s
statement to him that she “would have been better off fucking a
stranger” could have led the jury to think that Sadie “had a choice
about whether to engage in sexual activity with [him] instead of a
stranger.” Huey then asserts that Expert’s testimony on naive
users of methamphetamine rehabilitated Sadie’s testimony and
likens this case to State v. Peraza, 2020 UT App 173, 479 P.3d 1139.
But that case is readily distinguishable.
¶42 In Peraza, the trial court denied a continuance after the
defendant complained of inadequate notice from the State
regarding its expert witness. Id. ¶¶ 2, 7. The State called the expert
witness specifically to rehabilitate the victim’s credibility, due to
her recantation, by testifying that it was “‘not unheard of’ in child
sexual abuse victims” for children to recant or to gradually
disclose the abuse. Id. ¶ 7. This court determined that the
defendant was prejudiced by denial of the continuance because
the expert’s testimony “had the clear effect of rehabilitating [the
victim’s] credibility, and without the opportunity to present a
defense rebuttal expert, [the defendant] was handicapped in
presenting his defense.” Id. ¶ 8. Thus, the expert’s testimony about
recantation went directly to the victim’s credibility because that is
what the victim had done: recant. That is not what happened here.
20200620-CA 17 2022 UT App 94State v. Huey
¶43 Expert testified regarding naive users of
methamphetamine and the heightened effects of the drug on
naive users. This testimony has no logical connection to Sadie’s
statements that Huey may have thought she was “into it” or that
she “would have been better off fucking a stranger.” There was
no “clear effect of rehabilitating” Sadie’s credibility like what
happened with the victim in Peraza. Rather, it is significantly
disconnected from Sadie’s credibility and would not have
enhanced Sadie’s credibility on these points. Thus, this case is
distinguishable from Peraza, and we do not see any prejudicial
effect of Expert’s testimony in this regard.
II. Ineffective Assistance of Counsel
¶44 An ineffective assistance of counsel claim requires a
defendant to prove both that (1) “counsel’s performance was
deficient” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “A
defendant’s inability to establish either element defeats a claim for
ineffective assistance of counsel.” State v. Cruz, 2020 UT App 157,
¶ 17, 478 P.3d 631 (quotation simplified).
¶45 To establish deficient performance, i.e., that trial counsel’s
actions “fell below an objective standard of reasonableness,”
Strickland, 466 U.S. at 688, the defendant must overcome the
“strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” id. at 689. Indeed,
“even if an [act or] omission is inadvertent and not due to a
purposeful strategy, relief is not automatic.” State v. Ray, 2020 UT
12, ¶ 34, 469 P.3d 871 (quotation simplified). Instead, “even if a
court concludes that counsel made an error, the ultimate question
is always whether, considering all the circumstances, counsel’s
acts or omissions were objectively unreasonable.” State v. Scott,
2020 UT 13, ¶ 36, 462 P.3d 350.
¶46 To establish prejudice, “a defendant must present
sufficient evidence to support a reasonable probability that, but
20200620-CA 18 2022 UT App 94State v. Huey
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Archuleta v. Galetka, 2011 UT 73, ¶ 40,
267 P.3d 232 (quotation simplified). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
¶47 Huey contends that Trial Counsel was ineffective for not
objecting to three instances of allegedly inadmissible hearsay
from the testimonies of Mother, Jessica, and Randy. We address
each in turn and determine that Trial Counsel did not perform
deficiently in declining to object to any of the challenged
statements.
¶48 As relevant here, hearsay is a “statement” that “the
declarant does not make while testifying at the current trial or
hearing,” and is offered by a party “to prove the truth of the
matter asserted in the statement.” Utah R. Evid. 801(c).
“Sometimes, statements that appear on the surface to be hearsay
are not. Accordingly, if an out of court statement is offered for
some other purpose—e.g., to show its effect of the hearer’s state
of mind and not for its truth—it is not hearsay.” Arnold v. Grigsby,
2018 UT 14, ¶ 20, 417 P.3d 606 (quotation simplified).
Additionally, an exception to the hearsay rule allows the
admission of statements “relating to a startling event or condition,
made while the declarant was under the stress of excitement that
it caused.” Utah R. Evid. 803(2). These are referred to as “excited
utterances.” Here we do not need to definitively determine if the
complained-of statements were in fact inadmissible hearsay. All
we must do is determine whether it was “objectively
unreasonable” for Trial Counsel not to have objected to their
introduction. See Scott, 2020 UT 13, ¶ 36.
A. Mother’s Testimony
¶49 Huey first asserts that Mother’s testimony—both that an
officer called to tell her that “they were taking [Sadie] to the
hospital” and “that she had been raped by Dave Huey”—was
20200620-CA 19 2022 UT App 94State v. Huey
hearsay and that Trial Counsel performed deficiently by not
objecting to it. We disagree. This statement by the officer, offered
by Mother, does not appear to have been used “to prove the truth
of the matter asserted,” i.e., that Huey raped Sadie. Rather, this
testimony was critical in providing context for Mother’s narrative
as to why she called Huey and got the concession from him that
she did. Specifically, Mother called Huey and asked if he had
raped Sadie; Huey said he did not. But when she asked if he had
sex with Sadie, Huey just repeated that he did not rape her. Thus,
the complained-of statement from the officer, repeated by Mother,
was not used to prove that Huey raped Sadie but to explain why
Mother would have called and asked Huey if he raped her
daughter. See Arnold, 2018 UT 14, ¶ 20. Without the explanation of
what the officer told Mother in the phone call, the narrative about
Mother’s subsequent phone call to Huey would have made little
sense. People simply do not call one another randomly to inquire
whether they have recently raped someone.
¶50 Under these circumstances, reasonable counsel could have
concluded that the officer’s statement to Mother was not offered
to prove the truth of the matter asserted—that Huey raped
Sadie—but rather was offered to lay the groundwork for Mother’s
call to Huey. Given this context, we cannot say that it was
“objectively unreasonable” for Trial Counsel not to object to the
statement. See Scott, 2020 UT 13, ¶ 36.
B. Jessica’s and Randy’s Testimonies
¶51 Huey argues that Jessica’s testimony—that Sadie told her
on the phone that Huey “forced her to do meth and raped her”—
was inadmissible hearsay and that Trial Counsel performed
deficiently in not objecting to it. Huey also complains that Trial
Counsel performed deficiently in not objecting when Randy
responded, “If I remember, yes, I . . . believe so,” to the
prosecutor’s question whether Sadie told him why she needed a
ride and if that reason involved sex with Huey. We disagree on
20200620-CA 20 2022 UT App 94State v. Huey
both counts. Trial Counsel could have reasonably surmised that
Sadie’s statements to both Jessica and Randy were not
inadmissible hearsay because they qualified as excited
utterances.9 See Utah R. Evid. 803(2).
¶52 Huey contends that Sadie’s statements to Jessica did not
qualify as excited utterances because Sadie’s “conversation with
[Jessica] occurred well after the sexual activity occurred: [Sadie]
already left the house, walked to the gas station, and returned to
the house when she called [Jessica].” Huey also argues that
Sadie’s statements to Randy could not be excited utterances
because the “statements came after [Sadie] left [Huey’s] house for
the second time and was making the more-than-30-minute drive”
to her hometown. Thus, Huey asserts that “[b]ecause of the
temporal distance between the sexual activity and [Sadie’s]
conversation with [Jessica],” and “[b]ecause [Sadie] was
separated by time and physical distance from . . . Huey and the
sexual activity” when she made her statements to Randy, neither
could qualify as excited utterances.
¶53 These are valid points, and they do undercut a definitive
conclusion that Sadie’s statements qualified as excited utterances.
9. Trial Counsel could also have reasonably determined that
Sadie’s statement to Jessica was not hearsay because it was used
“to show its effect [on Jessica’s] state of mind and not for its truth.”
See Arnold v. Grigsby, 2018 UT 14, ¶ 20, 417 P.3d 606 (quotation
simplified). Specifically, after Jessica testified about her phone call
with Sadie, in which Sadie told her that she had been raped, the
prosecutor then asked Jessica if she had any “concerns about
[Sadie].” Jessica responded that she did, and the prosecutor asked,
“So what did you do?” Jessica replied, “I told my dad and he
called the cops.” Reasonable counsel could have determined that
Sadie’s statement was intended only to explain why Jessica did
what she did next and not to prove the truth of the matter
asserted. See id.20200620-CA 21 2022 UT App 94State v. Huey
But again, our role in this appeal is not to categorically determine
if Sadie’s statements to Jessica and Randy were inadmissible
hearsay. Rather, we must determine whether reasonable counsel,
when “considering all the circumstances,” could have determined
that they qualified as excited utterances and decided to forgo an
objection on that basis. See Scott, 2020 UT 13, ¶ 36. We conclude
that reasonable counsel could have so determined.
¶54 The test for whether a statement qualifies as an excited
utterance is threefold:
First, an “event or condition” must occur that is
sufficiently startling to cause an excitement that
stills normal reflective thought processes. Second,
the declarant’s declaration must be a spontaneous
reaction to the event or condition, not the result of
reflective thought. Third, the utterance must relate
to the startling event.
State v. Smith, 909 P.2d 236, 239 (Utah 1995). Additionally, “the
justification for the exception disappears as the emotional
excitement of the declarant subsides and the declarant’s capacity
for reflection revives.” Id. at 240. Thus, while “the utterance need
not be contemporaneous with the event, temporal proximity is a
factor to be considered.” Id. Here, only the second part of the
threefold test is in question because the first and third parts are
relatively straightforward and were likely met here. Indeed,
Huey’s challenge on appeal focuses only on the spontaneity of
Sadie’s statements to Jessica and Randy.
¶55 We disagree with Huey that the “temporal distance”
between the sexual abuse and Sadie’s call to Jessica is necessarily
dispositive in this case, i.e., that it rendered Trial Counsel’s
determination not to object unreasonable. Trial Counsel could
have reasonably determined that Sadie’s statement qualified as an
excited utterance notwithstanding the temporal gap between
event and statement. Reasonable counsel could have determined
20200620-CA 22 2022 UT App 94State v. Huey
that given the distressing situation stemming over several days,
Sadie’s statement to Jessica, when Sadie was finally free, was
spontaneous and made while she was still in an excited state
because of those traumatic events. Although Sadie did call Jessica
after she had already left Huey’s house and then returned to the
house to retrieve her jewelry, and some time had passed since the
rape, Sadie called from the very home where she was just raped
and talked to Jessica while she was in that home and again fleeing
the home and the perpetrator. Being at the location where sexual
abuse had been perpetrated and where the perpetrator was still
present, and talking to a friend while hurriedly fleeing that
location, would be understandably distressing. Whether or not
true in an absolute sense, reasonable counsel could conclude that
this provided ample evidence of the spontaneity of Sadie’s
statements. And it is not unreasonable to conclude that a
16-year-old rape victim under the influence of methamphetamine
would still be under significant stress from the rape for a longer
period of time than some other rape victims might be.
¶56 Further evidence of this spontaneity that reasonable
counsel could have relied on in deciding not to object is the fact
that Jessica testified that Sadie called her and told her “that she
was at David Huey’s house, and that she was trying to leave
because of all of the things that were going on there” and “that he
forced her to do meth and raped her.” The prosecutor then asked,
“Did you get into more details about that?” Jessica responded,
“No.” Thus, there was no testimony that there was a long
drawn-out conversation that would have allowed for Sadie’s
“emotional excitement [to] subside[]” and for her “capacity for
reflection [to] revive[].” See id. at 241. Rather, Sadie called Jessica
and immediately told her that she was leaving the house because
she was forced to do drugs and was raped.
¶57 Much the same is true regarding Sadie’s statements to
Randy. The time gap from when Sadie was raped until she
entered Randy’s car is not dispositive in determining whether
20200620-CA 23 2022 UT App 94State v. Huey
Trial Counsel acted unreasonably in not objecting to Randy’s
testimony. Trial Counsel could have reasonably concluded that
Sadie’s statements to Randy were still made while she was “under
the stress of excitement that” caused the statement and that the
statement qualified as an exited utterance. See Utah R. Evid.
803(2). Specifically, Sadie was a 16-year-old minor who had just
been raped by a 51-year-old man, and she was attempting to get
away from him and to a safe location. And Huey had recently
followed Sadie to the gas station after she fled Huey’s house,
forcing Sadie to ask for a ride from a complete stranger to take her
to meet Randy and to the relative safety this would afford her.
Additionally, Randy testified that when Sadie arrived she seemed
to be in “a lot of distress,” was “nervous,” and was “scared.” This
testimony provided evidence that Sadie was still under the
excitement or stress from the abuse, and when combined with the
facts of Sadie’s flight from Huey to reach Randy’s protection,
could have led Trial Counsel to reasonably conclude that Sadie’s
statements to Randy qualified as excited utterances.10
10. We acknowledge that there is limited evidence regarding
Sadie’s emotional state during her phone call with Jessica and her
car ride with Randy and that usually the party seeking to admit
statements under the excited utterance exception—the State in
this instance—must present “sufficient evidence” to the trial court
so that it can “logically conclude the stress and excitement of the
startling event were in full force and effect for the declarant,
without lapses, when the statement was made.” See West Valley
City v. Hutto, 2000 UT App 188, ¶ 20, 5 P.3d 1. But because Huey
did not object to these statements at trial, the State was never put
to its proof in seeking the admission of the complained-of
statements under this exception, leaving us with limited evidence
regarding Sadie’s emotional state at the time these statements
were made. But we emphasize again that we are looking at this
only through the lens of ineffective assistance of counsel, and we
(continued…)
20200620-CA 24 2022 UT App 94State v. Huey
¶58 Huey relies heavily on State v. Williams, 2020 UT App 67,
462 P.3d 832, to establish that Sadie’s statements were not excited
utterances. In that case, this court held that statements made soon
after an assault at the end of a nine-minute 911 call, as opposed to
those made at the beginning of the call, were not excited
utterances because the adult individual’s statements became less
spontaneous, his breathing slowed, and his voice calmed. Id. ¶ 31.
Huey’s reliance on this case is unavailing for three reasons.
¶59 First, and most importantly, this court issued Williams in
April 2020, nearly two months after Huey’s trial was held in
February 2020. And because Huey’s claim is that Trial Counsel
was ineffective in not objecting to the statements as hearsay, this
case cannot be relied on to show that Trial Counsel performed
deficiently because Trial Counsel did not have the benefit of
Williams. See State v. Newton, 2020 UT 24, ¶ 28 n.9, 466 P.3d 135(“In assessing whether counsel’s performance was deficient, we
must look at the facts and the law available to counsel at the time
of the representation.”) (quotation simplified).
¶60 Second, in Williams, the hearsay objection was preserved,
and evidence was introduced so that this court had the benefit of
are not considering whether the statements actually qualified as
excited utterances, as we would do if the court had overruled a
hearsay objection. The current context leaves Huey arguing that
Trial Counsel was ineffective for not objecting, which places the
burden on Huey to rebut the strong presumption that counsel
“rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” See
Strickland v. Washington, 466 U.S. 668, 690 (1984). And
notwithstanding the limited evidence bearing on Sadie’s
emotional state, we conclude that Trial Counsel could have
reasonably determined that Sadie’s statements were excited
utterances. Huey has thus not rebutted that strong presumption
on this record.
20200620-CA 25 2022 UT App 94State v. Huey
testimony regarding the individual’s breathing, his tone of voice,
and the spontaneity of his statements. With all that evidence in
the record and dealing with a preserved claim, this court was able
to make a definitive determination of whether the individual’s
statements given soon after an assault qualified as hearsay. Here,
as previously noted, Huey did not preserve this claim, so we do
not have the benefit of testimony specifically detailing Sadie’s
emotional state and cannot make a definitive determination if the
statements she made to Jessica and Randy were excited
utterances. We are only determining if Trial Counsel could have
reasonably determined that they were excited utterances, based
on the evidence in the record before us. And, as previously stated,
given the circumstances of Sadie’s statements to both Jessica and
Randy, we determine that reasonable counsel could have so
concluded.
¶61 Finally, reasonable counsel could have determined that
Sadie’s statements qualified as excited utterances even in the face
of Williams. This is so because in that case it was clear at the
beginning of the call that the individual was under the stress of
the assault—a rapid violent affair—and his “tone of voice, labored
breathing, and spontaneous exclamations” all “reflect[ed] his
apparent emotional state and intensity of emotional reaction.”
Williams, 2020 UT App 67, ¶¶ 28–29 (quotation simplified). But
when another dispatcher joined the call, the individual’s “voice
calmed, his breathing slowed, and his answers . . . became less
spontaneous.” Id. ¶ 31. This court determined that after this point,
any of the statements made by the individual were not excited
utterances. Id. Here, reasonable counsel could have determined
that the stress of the event on Sadie was not like that in Williams
and was ongoing because Sadie was a minor high on
methamphetamine who made the statements while fleeing from
Huey, who had just raped her. Indeed, Huey even followed Sadie
to the gas station, requiring her to abandon her plans to meet
Randy there and obtain a ride from a complete stranger to avoid
20200620-CA 26 2022 UT App 94State v. Huey
Huey. Reasonable counsel could have determined that in the face
of these facts, this case was distinguishable from Williams.
¶62 Thus, the temporal gap between the abuse and Sadie’s
statements to Jessica and Randy is not dispositive because
reasonable counsel could have concluded that, even though some
time had passed between the abuse and Sadie’s statements, she
was still “under the stress of excitement” when she made the
statements and the statements qualified as excited utterances. See
Utah R. Evid. 803(2). Cf. State v. Smith, 909 P.2d 236, 241 (Utah
1995) (stating that “[g]iven the overpowering emotional trauma
and the significant physical injuries caused by the assault, the
victim’s statements . . . notwithstanding the two- to three-hour
time lapse, clearly evidenced a spontaneity prompted by a
continuing aroused mental state” and thus qualified as an excited
utterance); United States v. Smith, 606 F.3d 1270, 1280 (10th Cir.
2010) (holding that a statement by a rape victim made roughly
two hours after the assault made “only upon escaping from” the
defendant and “still under obvious stress from the attack”
qualified as an excited utterance); United States v. Rosetta, No.
97-2023, 1997 WL 651027, at *2 (10th Cir. Oct. 20, 1997) (holding
that a statement made by a rape victim nine hours after the assault
was an excited utterance because the victim was “acutely
traumatized” and in a “panic state”).
¶63 “Considering all the circumstances,” we cannot say that
Trial Counsel was “objectively unreasonable” in forgoing an
objection because he could reasonably have determined that
Sadie’s statements to Jessica and Randy qualified as excited
utterances.11 See State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. See
11. It is worth noting that even if reasonable counsel would have
concluded that the complained-of testimony was objectionable,
reasonable counsel could still have decided that this was not a
battle worth fighting given that Sadie also testified in detail about
(continued…)
20200620-CA 27 2022 UT App 94State v. Huey
also State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871 (noting that we
“must always base [our] deficiency determination on the ultimate
question of whether counsel’s act or omission fell below an
objective standard of reasonableness”).
CONCLUSION
¶64 Huey suffered no prejudice from the trial court’s denial of
his continuance motion directed at Expert’s testimony or his
motion to exclude Expert’s testimony. There is not a reasonable
probability that he would have received a better result at trial
given the State’s compelling evidence that Sadie did not lawfully
consent given Huey’s position of special trust—a theory
completely unrelated to Expert’s testimony. And Trial Counsel
did not perform deficiently in forgoing hearsay objections to
statements in Mother’s, Jessica’s, or Randy’s testimonies because
reasonable counsel could have determined that the statements did
not constitute hearsay or were excited utterances.
¶65 Affirmed.
the rape, and Trial Counsel could have reasonably elected to forgo
an objection to the mostly cumulative testimony on that basis.
20200620-CA 28 2022 UT App 94