State v. Strayer

2021 UT App 49THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LLOYD L. STRAYER,
Appellant.
Opinion
No. 20191060-CA
Filed April 29, 2021
Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 181912610
Matthew R. Cloward, Attorney for Appellant
Simarjit S. Gill and Clint T. Heiner,
Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 After Lloyd L. Strayer grabbed the breast of another
resident (Neighbor) in a common room of their apartment
complex, a jury convicted him of sexual battery. Strayer moved
for a new trial on the ground of newly discovered evidence: the
testimony of another resident who purportedly was present
during, but did not see, the incident. The trial court denied the
motion after finding that Strayer failed to demonstrate any of the
State v. Strayer
three elements required for a new trial. Strayer appeals the trial
court’s denial of his motion. We affirm. 1
¶2 In February 2018, Neighbor entered a common room of
her apartment complex for what was, unbeknownst to her, a
surprise birthday party in celebration of her ninetieth birthday.
Strayer was one of a handful of residents waiting in the common
room. As Neighbor walked past him to speak with her daughter,
Strayer grabbed Neighbor’s breast. 2
¶3 Strayer was charged with sexual battery under Utah Code
section 76-9-702.1(1) (LexisNexis 2017), which criminalizes, in
relevant part, “intentionally touch[ing], whether or not through
clothing, . . . the breast of a female person.” The case proceeded
to trial, where Strayer maintained that he accidentally touched
Neighbor’s breast. Neighbor and her daughter testified about
their observations and ultimate beliefs that Strayer intentionally
grabbed Neighbor’s breast. None of the other witnesses who
testified were actually present in the common room when the
1. Because we agree with the trial court that Strayer failed to
demonstrate the requirement that the evidence “could not[,]
with reasonable diligence[,] have been discovered and produced
at the trial,” see State v. James, 819 P.2d 781, 793 (Utah 1991)
(cleaned up), we do not need to address either of the remaining
two requirements that the defendant is required to show when
moving for a new trial based on newly discovered evidence, see
State v. Goddard, 871 P.2d 540, 545 (Utah 1994) (“All three . . .
criteria must be met.”). As a result, to the extent possible, we
limit our discussion to this requirement.
2. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only when necessary to
understand issues raised on appeal.” State v. Cruz, 2020 UT App
157, n.1, 478 P.3d 631 (cleaned up).
20191060-CA 2 2021 UT App 49State v. Strayer
conduct occurred. 3 After hearing all the evidence, the jury found
Strayer guilty.
¶4 Strayer later moved for a new trial based on what he
described as “newly discovered exculpatory evidence.”
Specifically, this purportedly new evidence was the testimony of
another resident, S.I., who claimed that she was in the common
room during the incident and that “her perception of the events
was that the contact was not intentional.”
¶5 However, S.I. had been in contact with Strayer and his
defense team well before the trial. Specifically, S.I. wrote a letter
and provided it to Strayer months before trial so that he could
give it to his defense counsel (Counsel). S.I. and three other
residents of the building signed the letter, in which they
indicated that they believed Strayer’s version of events. But more
importantly, a few weeks after this—and still months before
trial—S.I. spotted Strayer’s investigator in the lobby of the
apartment building, and she asked the investigator to “come see
[her]” and “gave them [her] apartment number,” but the
investigator never spoke to her.
¶6 Nevertheless, in support of his motion, Strayer argued
that S.I.’s testimony could not have been discovered with
reasonable diligence. To this end, Counsel explained that,
3. Strayer did not testify on his own behalf. However, at trial, a
detective recounted Strayer’s police interview and relayed
Strayer’s version of the story. During this interview, Strayer
apparently volunteered that “he was a little more frisky than he
should have been” and stated that “he gave [Neighbor] a kiss on
the cheek” and “tried to give her a kiss on the lips.” With that
said, he claimed that touching Neighbor’s breast was simply an
accident, and that it happened as he “reached his right arm back
at about the same time [she] was passing behind him and that
his hand had hit [her] breast.”
20191060-CA 3 2021 UT App 49State v. Strayer
because he “received numerous letters” from residents of the
apartment building, it made sense to interview only those
residents who “appeared to be,” based on the content of those
letters, present during the event. And because “the letter from
[S.I.] . . . did not indicate that she had been present” for the
event, Counsel argued that speaking with her would essentially
have required Strayer to interview “everyone from his
apartment” and that it would be “unreasonable to expect that
due diligence would require” these efforts.
¶7 As the trial court correctly observed, to obtain a new trial
based on newly discovered evidence, “the moving party must
demonstrate from the proffered evidence that: (i) it could not,
with reasonable diligence, have been discovered and produced
at the trial; (ii) it is not merely cumulative; and (iii) it . . . make[s]
a different result probable on retrial.” State v. Loose, 2000 UT 11,
¶ 16, 994 P.2d 1237 (cleaned up). The trial court denied Strayer’s
motion, reasoning that—based on S.I.’s communication with
Strayer’s investigator—Strayer failed to demonstrate that S.I.’s
testimony could not have been discovered with reasonable
diligence. Specifically, the trial court stated, “[T]his new
potential witness indicates that she had some communication
with [Strayer’s] investigator prior to trial. The fact that—that
wasn’t followed up with . . . I think, doesn’t make it new
evidence. I specifically find that there has not been a showing
that this evidence couldn’t be discovered with reasonable
diligence.”
¶8 On appeal, Strayer must demonstrate that the trial court
clearly abused its discretion in denying his motion for a new
trial. See State v. Martin, 2002 UT 34, ¶ 45, 44 P.3d 805. “A trial
court abuses its discretion if its decision is premised on flawed
legal conclusions, if the trial court’s decision was beyond the
limits of reasonability, if the trial court’s actions are inherently
unfair, or if we conclude that no reasonable person would take
the view adopted by the trial court.” State v. Boyer, 2020 UT App
23, ¶ 18, 460 P.3d 569 (cleaned up).
20191060-CA 4 2021 UT App 49State v. Strayer
¶9 Strayer does little to address the basis of the trial court’s
ruling: S.I.’s pre-trial contact with Strayer’s investigator. Strayer
seems only to imply that his investigator was busy interviewing
other residents who had previously given an express indication
that they were present during the incident, and thus it would
have been unreasonable for the investigator to divert attention
away from these other residents to interview S.I. Based on this,
he likens his case to State v. James, 819 P.2d 781 (Utah 1991),
where our supreme court found that the reasonable diligence
requirement was demonstrated because the record showed that
“defense counsel . . . would have had to obtain the names of and
interview between fifty and one hundred prisoners during the
two-week period prior to the trial” to discover the evidence at
issue. See id. at 794. Specifically, Strayer asserts that, “[l]ike in
James, [he] would have had to interview many residents of the
apartment complex to have produced [S.I.’s] testimony at trial.”
¶10 But Strayer essentially admits that there is nothing in the
record to substantiate his arguments. Indeed, he explicitly
acknowledges that “[t]here is nothing in the record to indicate
how many other individuals the investigator spoke with while
looking for individuals that had provided information relevant
to the event,” or even to indicate “how many residents lived at
the apartments.” 4 As a result, Strayer necessarily fails to
demonstrate that the trial court abused its discretion in denying
his motion. See Utah R. Crim. P. 24(b) (“A motion for a new trial
. . . shall be accompanied by affidavits or evidence of the
4. Moreover, Strayer’s entire argument seems to be predicated
on the notion that, because Counsel received an allegedly
voluminous number of letters of support, a reasonably diligent
investigation would not have involved speaking with S.I. given
that her letter never mentioned that she was present for the
incident. But again, Strayer explicitly acknowledges that “[t]here
is nothing in the record as to how many letters were provided.”
20191060-CA 5 2021 UT App 49State v. Strayer
essential facts in support of the motion.”); State v. Hawkins, 2016
UT App 9, ¶ 63, 366 P.3d 884 (“The appellant bears the burden of
identifying the parts of the record that he claims demonstrate
trial court error.”). For related reasons, we see no useful parallels
between this case and James. In contrast to the “difficulties
inherent in obtaining” the evidence in James, interviewing a
single witness who lived in Strayer’s building and asked to
speak with his investigator months before trial hardly seems “an
insurmountable task.” 5 See James, 819 P.2d at 794.
¶11 Affirmed.
5. Additionally, James concerned the testimony of another inmate
(Kenneth Lisner) who claimed that “a key witness for the
prosecution” (Ronald Peterson) told Lisner that he “fabricated
his testimony at trial . . . to get better treatment . . . at his own
criminal trial.” State v. James, 819 P.2d 781, 793 (Utah 1991). Not
only did this conversation happen “about two weeks before
trial,” but there is no indication that James ever knew of the
conversation until Lisner told him about it “well after the trial.”
Id. at 793–94. Thus, before the trial, neither James nor his counsel
had any reason to interview Lisner, or to otherwise ferret out a
statement that they had no knowledge of. In contrast, Strayer
had every reason to ask the other residents of his apartment
whether they had been present for the incident and, if so, to ask
what they saw. Indeed, if S.I.’s testimony is to be believed,
Strayer should have easily been able to identify potential
witnesses. S.I. claims that, after Strayer made contact with
Neighbor’s breast, Strayer stayed for the duration of the
celebration, “[a]bout 45 minutes maybe,” and “had cake” with
everyone—and this all occurred in a room that could fit, at most,
approximately fifteen people in it. To be frank, this is a far cry
from the peculiar circumstances in James.
20191060-CA 6 2021 UT App 49