State v. Meyer ( 2023 )

2023 UT App 65THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ELIZABETH LYDIA MEYER,
Appellant.
Opinion
No. 20210718-CA
Filed June 15, 2023
First District Court, Brigham City Department
The Honorable Spencer Walsh
No. 181100556
Wendy M. Brown, Debra M. Nelson, and
Benjamin Miller, Attorneys for Appellant
Blair T. Wardle, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Elizabeth Lydia Meyer’s1 ex-husband (Father) discovered
bruising on their daughter (Child) after picking her up from
Meyer’s home. The State charged Meyer with child abuse and, at
a bench trial, used a process-of-elimination approach to argue that
Meyer was the only possible cause of the bruising. The district
court convicted Meyer, and she now appeals. Meyer asserts that
the court erred in admitting the preliminary hearing testimony of
1. Since the time of her charges, the defendant has remarried. She
uses a different last name but still accepts the use of “Meyer.” We
continue to use “Meyer” for simplicity and for consistency with
the case name.
State v. Meyer
her now-husband. We agree that this action was erroneous and
prejudiced Meyer, so we vacate her conviction.
BACKGROUND
¶2 One Wednesday in July 2018, Father picked up Child, then
two years old, from Meyer’s home for a regular midweek visit.
Meyer and Father had been through a “fairly contentious”
divorce, and their relationship was sometimes “volatile,” so
Father had made it a habit to record via cellphone his pickups of
Child. His video recording from this day shows marks on the
upper portions of both of Child’s arms. But Father did not notice
the marks until later, when he was at a restaurant with Child.
Father exchanged texts with Meyer about the marks:
Father: I noticed that [Child] has what looks like
bruises on her arm. Is she okay?
Meyer: Yes, she’s fine.
Father: How did she get those marks?
Meyer: How do children get the majority of their
bruises? What direction are you trying to
go with this?
Father: I’m just concerned because the bruising
pattern is not consistent with normal
childhood injuries.
Meyer: Since when did you become an expert in
that matter? I understand that you want to
pretend to care about my daughter, but I
do not wish to have you go on a third
witch hunt and falsely accuse someone
like you already have done twice, even
20210718-CA 2 2023 UT App 65State v. Meyer
though we both know you’re dying to.
You do not make any of her medical
appointments. And the last I knew you
have not completed any courses in the
direction. So please leave your harassing
comments to yourself.
¶3 After dinner, Father drove to the police station and asked
for an officer to examine Child’s arms. An officer (Officer) and a
caseworker (Caseworker) from the Division of Child and Family
Services (DCFS) met with Father and photographed Child’s arms
approximately two hours after Father had picked up Child.
¶4 Officer and Caseworker then visited Meyer’s home.
Outside, they met Michael Glenn, Meyer’s then-boyfriend whom
she married before the case went to trial. Glenn was initially
“defiant” and did not want them to enter the house, but when
they showed him photos of Child’s bruises, he was concerned and
let them in.
¶5 Officer and Caseworker entered the house and spoke with
Meyer, who was very upset. Officer asked Meyer what could have
caused bruising on Child’s arms, and Meyer gave multiple
possible explanations, including Child falling out of the car when
she arrived home from daycare, Child playing with hair ties that
were like rubber bands (which she snapped on her arms), or Child
playing roughly with her older brother and sometimes getting rug
burns from the roughhousing. Caseworker asked Meyer how she
had picked Child up when Child fell out of the car after returning
from daycare, and Meyer responded along the lines that she
picked Child up like any mother would and cleaned her face.
Meyer also reported that she had caused a mark on Child’s upper
arm when Child ran into the street and Meyer pulled her back.
Caseworker showed Meyer photos of Child’s bruises, and Meyer
was very surprised, saying, “They were not like that.”
20210718-CA 3 2023 UT App 65State v. Meyer
¶6 Glenn gave Officer contact information for Child’s daycare
provider (Daycare Provider). When Officer spoke to Daycare
Provider on the phone, she confirmed that Child had been in her
care that day. Daycare Provider also confirmed that she had asked
Meyer about a mark on Child’s arm when Meyer picked Child up
that day and that Meyer told her she had grabbed Child to prevent
her from running into the street.
¶7 The next day, Father took Child for a physical exam, which
was completed by a forensic nurse examiner (Nurse). In her
report, Nurse identified “[p]ositive physical findings of injury to
bilateral upper arms and left forearm” and described the upper
arm injuries as “circumferential and linear with equal spacing
between” them and stated that the bruises were “highly indicative
for a squeezing mechanism and physical abuse.” Child was not
returned to Meyer’s care.
¶8 The case was transferred to a detective (Detective), who
called Meyer two days after the alleged incident and recorded the
phone call. During the call, Meyer implied that Father was the
source of Child’s bruises because, according to her, Child had no
bruises until she was in Father’s care and Meyer believed that
“[h]e [was] trying to get [her] daughter away from [her].” Meyer
was very upset during the call and indicated that she had been
previously accused of child abuse, presumably by Father. Meyer
also stated that she did not see any bruises or marks on Child—
other than the mark from the incident she reported of grabbing
Child to stop her from running into the road—before giving Child
to Father. But she explained that Child would sometimes scratch
herself, leaving marks, and hit and bite things. Meyer also spoke
about Glenn’s whereabouts on the day of the incident, indicating
that Glenn was asleep when Child came home and remained
asleep until after Father had picked Child up.
¶9 Detective wrote in his police report that Child’s older
brother, then four years old, “was asked where his sister got the
20210718-CA 4 2023 UT App 65State v. Meyer
marks on her arm and he said that it was from someone who had
power and squeezed hard.” Detective spoke to Daycare Provider,
though he did not inspect her home; perform a background check
on her; or speak with the parents of other children she babysat or
with the three children she had living with her, who were ages
fourteen, ten, and eight and may have had access to Child.
Detective later testified that he didn’t really consider Daycare
Provider a suspect after speaking with her. He also ruled out
Glenn as a suspect based on Meyer’s statement that Glenn had
been asleep between the time Child came home from daycare and
the time Father picked up Child. However, in his report he wrote
that he told Meyer he didn’t think the incident causing the
bruising had happened on that day. But at trial he testified that,
based on his investigation, the timeline he established was that
there were no visible bruises—other than the one caused by
Meyer stopping Child from running into the street—until the time
between Meyer picking Child up from daycare and Father picking
her up from Meyer within the next forty-five minutes.
¶10 In August 2018, another officer (Sergeant) interviewed
Meyer in person at Detective’s request. Meyer’s statements were
consistent with those she had made previously. Specifically,
Meyer again stated that Glenn was asleep when Child returned
from daycare and did not wake up until after Child left with
Father.
¶11 In December 2018, the State charged Meyer with one count
of child abuse, a class A misdemeanor.
¶12 The district court held a preliminary hearing in May 2019.
Among other witnesses, the State subpoenaed Glenn to testify at
the hearing. When he was called to testify, he was hostile, and the
court threatened to hold him in contempt and take him into
custody. But Glenn ultimately did testify. While he first declared
that it was “100 percent incorrect” that he told Officer and
Caseworker that the marks had not been on Child in the morning,
20210718-CA 5 2023 UT App 65State v. Meyer
after reviewing Officer’s bodycam footage, he admitted that he
did say that. He also testified that after waking up that morning,
he went straight to the car and didn’t notice any marks on Child’s
arms, but he said he was busy “concentrating on driving and
getting to and from.” He described how he went with Meyer to
drop Child off at daycare in the morning. He testified that he was
asleep when Meyer brought Child home. And he declared that he
did not cause Child’s bruising.
¶13 Sometime after the preliminary hearing, Meyer married
Glenn, and Meyer’s defense counsel (Defense Counsel) informed
the State via email that Glenn intended to invoke his spousal
privilege related to testifying at trial. The State told Defense
Counsel that Glenn was “still required to show up to court to
produce evidence that he [was], in fact, married . . . and take the
stand to actually invoke the privilege.” The prosecutor
insisted, “This is important because then he will become an
unavailable witness. As an unavailable witness, I will then be able
to play his preliminary hearing audio in lieu of his testimony.”
Defense Counsel indicated that she “had anticipated that [the
State] would be able to get Glenn’s preliminary hearing testimony
in at trial.”
¶14 When Defense Counsel later informed the State that Glenn
would be on bed rest following surgery on the date of trial (which
had been continued multiple times), they discussed the
possibilities of Glenn testifying via video during trial or of filing
stipulated facts related to his testimony. But Glenn filed a motion
to quash the subpoena against him. The State then sent Defense
Counsel a transcript and redacted audio file of Glenn’s
preliminary hearing testimony that it intended to have admitted
at trial, and Defense Counsel responded, “I would absolutely
object to both the transcript and the audio coming in at trial. . . .
Glenn’s testimony is hearsay[,] and to introduce it would also be
a violation of my client’s confrontation rights.” Defense Counsel
explained, “The Utah Supreme Court has ruled that because there
20210718-CA 6 2023 UT App 65State v. Meyer
is a different motive for examining witnesses at a preliminary
hearing than that at a trial, said testimony is inadmissible.”
¶15 The State then filed a motion to admit Glenn’s preliminary
hearing testimony. After receiving briefing and hearing oral
argument, the court found that Glenn’s testimony fell under the
exception to hearsay in rule 804(b)(1) of the Utah Rules of
Evidence for former testimony of an unavailable witness. The
court acknowledged caselaw indicating that defendants are
restricted in developing testimony at preliminary hearings, see
State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it
distinguished that caselaw from the facts of this case and admitted
the testimony.
¶16 The court held a bench trial in May 2021. In its opening
statement, the State indicated that “through the process of
elimination,” it would “show beyond a reasonable doubt that it
was . . . Meyer who committed child abuse.”
¶17 In addition to Glenn’s testimony, Daycare Provider
testified at trial that Child had been in her care from roughly 9:00
a.m. to 4:45 p.m. that day. She stated that she did not see any
marks or injuries on Child when Child was dropped off and she
never saw marks like those photographed, but she did notice a
different mark on Child’s arm later in the day, and this was the
mark she asked Meyer about. She also testified that on the day of
the bruising, she did not take Child to the park, she did not know
of any equipment Child could have accessed that would have
caused the injuries, Child did not get injured playing with toys,
Child did not receive any injuries while in her care, and Child did
not cry or appear to be in pain while in her care. She admitted,
though, that she was aware that Child had been “kicked out of her
previous day care . . . for playing too rough” and that Child
“play[ed] really rough with toys and hit[] dolls a lot.”
¶18 Nurse testified that after examining Child, she “speculated
. . . that because of the spacing, and the shape, and the location of
20210718-CA 7 2023 UT App 65State v. Meyer
the injuries, the colors that [she] saw, they were most definitely
bruises,” the spacing of which “could fit a hand.” She said, “I’m
not telling you it’s fitting a hand because—you know, I can’t say
it was a hand unless I watched it happen, but I can tell you that
those are bruises that are in a linear form that you don’t just get
from falling down.” She further testified that based on the
location, direction, and shape of the bruising, she did not believe
that the incidents Meyer had described as possible accidental
sources of injury had caused Child’s bruises. She also testified that
the marks were “fresher bruises” that, based on coloration, could
have been caused within hours of when Officer and Caseworker
photographed Child’s injuries. But she acknowledged that
“there’s no scientific way to date a bruise” and said that while it
was “likely that it occurred” that day, “literally there is no way to
determine when it happened.”
¶19 The State played a clip from the recorded interview
between Meyer and Sergeant, in which Meyer stated that Child
had a temper tantrum after arriving home from daycare and that
Child tried to get out of being held and Meyer needed to grab her
arm from the side.
¶20 In its closing argument, the State asked, “[W]ho caused the
abuse?” and answered that “this is where we get into the process
of elimination.” The State then explained its theory that the
evidence proved that no one else could have caused the bruising,
including Glenn, who “slept through the whole thing.”
¶21 The court ultimately found Meyer “guilty of a lesser-
included offense of [c]lass B misdemeanor, child abuse, for having
inflicted this injury on [Child] in a reckless manner.” The court
provided its rationale, explaining in part that it “found highly
credible the testimony” of Nurse that the “bruising was consistent
with the types of bruising she has seen in her child abuse
conferences and trainings.” The court ruled out Glenn as a
potential source of the injuries by saying, “You know, . . . Glenn
20210718-CA 8 2023 UT App 65State v. Meyer
is asleep by the time [Child] gets home and doesn’t really interact
at all. And then we know for a fact that the injuries took place . . .
definitively prior to when [Father] arrive[d] based off of the
video.” The court concluded, “And so there’s just no doubt in the
[c]ourt’s mind that Mom, you lost your cool, you crossed a line,
you squeezed your daughter’s arms, and it left that injury. It
couldn’t have been anyone else.” The court sentenced Meyer to
180 days of jail but suspended 179 days. It also ordered a fine and
probation.
¶22 Meyer subsequently filed a motion for a new trial through
Defense Counsel. Defense Counsel then withdrew from
representing Meyer. Meyer appeared pro se and asked the court
to appoint counsel, but the State objected, and the court decided
that Meyer did not qualify for appointed counsel based on her
income. The court ultimately denied Meyer’s motion for a new
trial. Meyer now appeals.
ISSUE AND STANDARD OF REVIEW
¶23 Meyer argues on appeal that Glenn’s “preliminary hearing
testimony should not have been admitted at trial” under an
exception to the bar on hearsay.2 “When reviewing rulings on
hearsay, [appellate courts] review legal questions regarding
admissibility for correctness, questions of fact for clear error, and
the final ruling on admissibility for abuse of discretion.” State v.
Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert.
denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that
the hearsay testimony should not have been admitted, we will
reverse only if a reasonable likelihood exists that absent the error,
2. Meyer also argues that the district court “committed plain error
by failing to obtain a valid waiver of counsel before having
[Meyer] represent herself on her motion for a new trial.” Because
we rule in her favor on the first issue, we need not address this
argument.
20210718-CA 9 2023 UT App 65State v. Meyer
the result would have been more favorable to the defendant.” Id.(cleaned up).
ANALYSIS
I. Similar Motive and Opportunity
¶24 Meyer argues that the district court erred in admitting
Glenn’s preliminary hearing testimony. She asserts that Glenn’s
testimony fails to qualify for the rule 804 exception to the
evidentiary bar on hearsay. This exception applies when “the
declarant is unavailable” and the declarant’s testimony was
“given . . . at a trial, hearing, or lawful deposition” and is now
“offered against a party who had . . . an opportunity and similar
motive to develop it by direct, cross-, or redirect examination.”
Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point
“compels the conclusion that the admission of Glenn’s
preliminary hearing testimony was erroneous” because that
caselaw indicates that the motive to develop an adverse witness’s
testimony at a preliminary hearing differs from the motive to do
so at trial.
¶25 In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme
court discussed the effect of the 1994 amendment to Article I,
Section 12 of the Utah Constitution, which limited “the function
of preliminary examination to determining whether probable
cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I,
§ 12). The court stated that, “by and large,” this provision “places
most credibility determinations outside the reach of a magistrate
at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution
specifically limits the purpose of preliminary hearings in a
manner that can undercut defense counsel’s opportunity to cross-
examine witnesses at a preliminary hearing and thereby modify
the interest counsel has in developing testimony on cross-
examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of
inadmissibility for preliminary hearing testimony because it
20210718-CA 10 2023 UT App 65State v. Meyer
could “envision scenarios where, for whatever reason, defense
counsel possesses the same motive and is provided the same
opportunity to cross-examine as she would have at trial.” Id.¶¶ 36–37. However, the court indicated that “such cases might
prove rare.” Id. ¶ 36.
¶26 The Goins court then analyzed the motive for cross-
examining a witness at the preliminary hearing by considering the
facts of the case, which included the defendant allegedly
brandishing a knife and accusing the later-unavailable witness of
stealing his phone, after which the witness fled and the defendant
assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held
that it was “apparent on the record . . . that [the defendant’s]
counsel did not possess the same motive to develop testimony at
the preliminary hearing that she would have had at trial” because
the witness’s “testimony referenced concerns with [the
defendant] and a prior incident between” the pair, so the
defendant’s “counsel had a motive to develop this testimony and
question [the witness’s] credibility” at trial “that went beyond a
preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.
¶27 Subsequent cases have reached similar conclusions. In
State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of
aggravated robbery for allegedly robbing a cupcake shop at
gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the
events within the store, id. ¶ 19, but another witness—a witness
who saw the perpetrator leave the scene, run across the road, and
get into a car whose license plate she then reported—was not able
to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court
admitted her preliminary hearing testimony, id. ¶ 19, but our
supreme court held that this was improper, id. ¶ 40. It stated that
in Goins, it had “conditioned the admissibility of preliminary
hearing testimony on a showing that defense counsel really did
possess the same motive and was permitted a full opportunity for
cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned
up). And it said that “Goins foreclose[d] the admissibility of the
20210718-CA 11 2023 UT App 65State v. Meyer
. . . preliminary hearing testimony” because, “as in Goins, . . . [the
court had] no basis to conclude that [the defendant’s] counsel’s
preliminary hearing motive to cross-examine was similar to what
would have existed at trial.” Id. ¶ 40 (cleaned up).
¶28 Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218,
cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the
holding of Goins where a defendant faced charges related to the
alleged kidnapping of two men and murder of one of them, id.¶¶ 22–24. The court considered the admissibility of preliminary
hearing testimony from a man who helped tie up the victims,
drove the group to the murder site, supplied the gun, and
observed the murder. Id. We noted that “whether the defense had
a similar motive to develop prior testimony for purposes of rule
804(b)(1) will often turn on the nature of a witness and her
testimony.” Id. ¶ 40 (cleaned up). Where the witness in question
“was not only a critical eyewitness, but also an accomplice to each
of the crimes,” we determined that “[t]he opportunity to cross-
examine this type of witness at a preliminary hearing will likely
be a poor substitute for confronting the witness at trial, where the
jury can observe [the witness’s] demeanor and assess . . .
credibility firsthand.” Id. Accordingly, we held that “the State did
not demonstrate that [the defendant] had an adequate
opportunity and similar motive to cross-examine [the witness] at
the preliminary hearing as he would have had at trial.” Id. ¶ 41.
¶29 The district court believed that the present case was
distinguishable from Goins because that case involved an
“incident that could have caused motive for [the witness] to
fabricate or fashion . . . testimony in such a way that would be
damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the
other hand, the court stated, “in the case before the [c]ourt, there’s
nothing that has been pointed to specifically that would indicate
that there is a similar motive for . . . Glenn to have fabricated any
of his testimony.” But the court’s analysis on this point was
inadequate, as a witness’s motive for fabrication is not the only
20210718-CA 12 2023 UT App 65State v. Meyer
circumstance that might impact a defendant’s motive for
questioning a witness at a preliminary hearing. This is obvious
from Ellis, where the witness had no motive to fabricate testimony
and our supreme court still held that it had “no basis to conclude
that [the defendant’s] counsel’s preliminary hearing motive to
cross-examine was similar to what would have existed at trial.”
2018 UT 2, ¶ 40 (cleaned up).
¶30 The district court erred in concluding that the motives at
the preliminary hearing and at trial were the same. The court
stated that during the preliminary hearing “there was an
opportunity to cross-examine [Glenn] as to whether he was the
source of . . . the injuries, whether he abused [Child].” “In fact,” it
pointed out, “the State specifically questioned him on that.” It
continued, “[The preliminary hearing judge] would have never
shut that down and said, ‘No, even though the State had
questioned specifically, did you cause the injuries, [d]efense
you’re prohibited from going after him to follow up on that
question.’ Certainly that would have been permitted by . . . the
[j]udge.” But this analysis does not align with our supreme court’s
in Goins. The Goins court specifically addressed the reality that a
per se rule of admissibility for preliminary hearing testimony of
unavailable witnesses “places magistrates in the uncomfortable
position of choosing between conducting preliminary hearings in
fidelity with article I, section 12 and permitting the type of
examinations” that were standard before the constitutional
amendment limited the scope of preliminary hearings. 2017 UT
61, ¶ 34. The district court fails to accept that, as the supreme court
suggests, Defense Counsel could have reasonably expected the
court to limit questioning to that which was necessary for
probable cause and prepared to cross-examine Glenn accordingly.
See id. We reasoned similarly in Leech, where the defendant’s
“counsel admitted that he did not pose a question during his
cross-examination of [the witness] that was objected to and
sustained, but he maintained that he did not have the same
opportunity and motive to cross-examine [the witness] as he
20210718-CA 13 2023 UT App 65State v. Meyer
would have had at trial because he understood the limited scope
of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly,
the district court erred in determining that Meyer had the same
motive and opportunity to question Glenn in the preliminary
hearing as she did at trial because the judge would—
presumably—not have prevented follow-up questions to those
that were asked.
¶31 Instead, the court should have recognized that the motives
changed with respect to questioning witnesses at the preliminary
hearing versus at trial. The State was clear that its case was based
on a process of elimination. This point is hardly significant at a
preliminary hearing, which seeks to determine if there was
probable cause—a low standard—for a jury to conclude Meyer
caused the bruising. See id. ¶ 20 (reciting the magistrate’s
explanation at the defendant’s preliminary hearing that “different
standards of proof apply at a probable cause hearing than apply
at trial” and that “probable cause means enough evidence that the
court is convinced that a reasonable jury could find, not that they
necessarily would, but that they could find the offenses charged
were committed and that [the defendants] were the individuals
who committed them” (cleaned up)). Moreover, at a preliminary
hearing, the facts are construed in the light most favorable to the
State’s case. See id. (indicating that the magistrate informed the
defendant that “one of the most important [differences] is that any
doubts or questions about evidence at a preliminary hearing get
resolved in favor of the State and against the defendants” and
explained that “the benefit of the doubt goes to the State in a
preliminary hearing” (cleaned up)). On the other hand, at trial the
State must prove a defendant’s guilt beyond a reasonable doubt,
see, e.g., id. ¶ 64, and here the State needed to eliminate all other
possible suspects beyond a reasonable doubt during trial. So the
motive in questioning each witness at the preliminary hearing
was to show lack of probable cause that Meyer was the source of
Child’s bruises, while the motive at trial was to introduce
reasonable doubt as to Meyer causing the bruises by convincing
20210718-CA 14 2023 UT App 65State v. Meyer
the court that someone else may have done so. In other words,
with respect to Glenn, the motive shifted from showing that
Glenn was the more likely source of the bruising to showing that
Glenn could have caused the bruising such that there was
reasonable doubt that Meyer caused it. Therefore, we hold, as did
the Goins court, that it was “apparent on the record . . . that
[Meyer] did not possess the same motive to develop testimony at
the preliminary hearing that she would have had at trial” because
at trial Meyer “had a motive to . . . question [Glenn’s] credibility
that went beyond a preliminary hearing’s constitutionally limited
purpose.” See 2017 UT 61, ¶ 46.
II. Prejudice
¶32 “A determination of error in admitting [Glenn’s]
preliminary hearing testimony is not alone enough to sustain a
reversal. We must also find that error prejudicial. Prejudice in this
setting requires a showing of a reasonable likelihood that the
decision to admit [Glenn’s] preliminary hearing testimony altered
the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86(cleaned up).
¶33 The relevant caselaw indicates that errors in admitting
preliminary hearing testimony are sometimes harmless. In Goins,
the court held that the error was prejudicial as to one charge but
harmless as to another because on the first charge, the “testimony
was the primary evidence admitted in support of” that charge but
on the second charge, the testimony did not address the major
underlying facts and the guilty verdict was supported by other
witness testimony and corroborating photographs. State v. Goins,
2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.
¶34 Similarly, in Leech, this court identified prejudice with
respect to one count but not as to three others. State v. Leech, 2020
UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah
2021). For the first, we determined that the “charge could not be
proven without crediting” the testimony of the kidnapping victim
20210718-CA 15 2023 UT App 65State v. Meyer
who wasn’t killed and “there [was] a reasonable likelihood that
the jury would not have believed” this person “without the
corroboration [the unavailable witness’s] testimony provided.”
Id. ¶ 63. But we held that two of the convictions were
independently supported by three other witnesses. Id. ¶ 52. And
for the final charge, one of its elements “was not disputed at trial”
and the other two elements “did not depend on the veracity of the
[unavailable witness’s] account of the murder itself.” Id. ¶ 62.
¶35 In Ellis, the court found prejudice where “the preliminary
hearing testimony in this case was central to the prosecution’s
case on this charge.” 2018 UT 2, ¶ 2. The court so concluded
because the witness “provided key pieces of evidence that the jury
likely credited,” including her being “the only witness who could
testify that the robber fled in a car”—making her “the crucial link
for what occurred after [the clerk] lost sight of the robber.” Id.
¶¶ 43, 45.
¶36 Here, the court’s error in admitting Glenn’s testimony
prejudiced Meyer because there is a “reasonable likelihood that
the decision to admit [Glenn’s] preliminary hearing testimony
altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s
presentation of the case against Meyer as a “process of
elimination” impacts the fact-finder’s weighing of the evidence
such that, for Glenn’s testimony to have been prejudicial, Meyer
need show only that without the testimony, the court would have
had a reasonable doubt that she was the source of the injuries.
Meyer points us to this helpful insight offered by the Supreme
Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a
conviction by the process of elimination by showing that no one
else but [the] defendant could have been guilty, the burden [is]
upon it to show that there was no one else in the other room.”
People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).
¶37 We agree with Meyer that removing Glenn’s erroneously
admitted testimony makes a finding of reasonable doubt as to
20210718-CA 16 2023 UT App 65State v. Meyer
Meyer’s guilt much more likely. While Meyer’s own testimony
corroborated Glenn’s account from the preliminary hearing that
he was sleeping during the time Child was home from daycare
until Father picked her up, that is not the only information Glenn
provided. Glenn also testified that he did not cause the bruising.
And he testified that, on the morning in question, he woke up and
went directly to the car to drive Child to daycare, giving him no
opportunity to interact with Child such that he could have caused
her bruising that day.
¶38 The court, in providing the rationale for its conviction of
Meyer, explained that it “found highly credible the testimony of”
Nurse that the “bruising was consistent with the types of bruising
she has seen in her child abuse conferences and trainings.” And it
said, “You know, . . . Glenn is asleep by the time [Child] gets home
and doesn’t really interact at all. And then we know for a fact that
the injuries took place . . . definitively prior to when [Father]
arrive[d] based off of the video.” The court clearly found that the
bruises were caused before Father arrived, but it did not make a
specific finding that the bruises could not have been caused earlier
in the day. And Nurse, whose testimony the court found “highly
credible,” testified multiple times that she could not provide a
timeline for the cause of the bruising. When asked if it was
“possible to at least rule out certain time frames,” Nurse
responded, “What we were trained was that a fresher bruise is red
or purple. . . . Red or purple means that this happened probably
fairly close to the time that I saw her because of the darkness of
the color, but . . . there’s no scientific way to date a bruise.” Nurse
agreed that the bruises could have been caused “within hours.”
But when Defense Counsel pressed, asking, “You testified a
minute ago that you—it’s your opinion that with bruising, from
what you observed, it’s more likely that it occurred like four hours
before?” Nurse answered, “That day.” Defense Counsel stated,
“That day. Two hours before, five hours before.” Nurse
responded, “Purple-red is the colors you see first with bruising
20210718-CA 17 2023 UT App 65State v. Meyer
and there is—literally there is no way to determine when it
happened.”
¶39 Given that removing Glenn’s testimony would have
heightened the possibility that Glenn caused the injuries at some
time outside the window between Child’s return from daycare
and Father’s arrival, we conclude that Meyer was prejudiced. The
State’s process-of-elimination approach makes Glenn’s
preliminary hearing statements that he did not cause the
bruising and did not have the opportunity to cause the
bruising before Child went to daycare all the more significant. The
State admitted as much when it argued for the admission of
Glenn’s testimony, saying that “his testimony [was] necessary to
the State to prove the case at trial.” We are hard-pressed to
conclude that the testimony’s faulty admission was
harmless when the State was so adamant that the testimony was
essential in the first place. And the State fails to argue that
Meyer was not prejudiced by the faulty admission or to point us
to other evidence corroborating these key points of Glenn’s
testimony. So without the preliminary hearing testimony, Glenn
was not excluded—or at least not as easily excluded as he would
have otherwise been. The State’s theory required it to eliminate all
other possible suspects; without Glenn’s preliminary hearing
testimony, it did not do so, and it is likely that the court would
have concluded as much. In this respect, Glenn’s testimony is like
that at issue in Ellis, because it was “central to the prosecution’s
case” and “provided key pieces of evidence” under the State’s
process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this
testimony is unlike that deemed nonprejudicial in Goins and Leech
because Meyer’s conviction did “depend on the veracity of
[Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly,
the court’s error in admitting Glenn’s preliminary hearing
testimony prejudiced Meyer.
20210718-CA 18 2023 UT App 65State v. Meyer
CONCLUSION
¶40 The district court erred in admitting Glenn’s preliminary
hearing testimony, and Meyer was prejudiced by that error. We
therefore vacate Meyer’s conviction and remand this matter for
further proceedings consistent with this opinion.
20210718-CA 19 2023 UT App 65