State v. Cegers

2019 UT App 54THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ANTONIO DEWAYNE CEGERS,
Appellant.
Opinion
No. 20161018-CA
Filed April 4, 2019
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 161900207
Nathalie S. Skibine, Lisa J. Remal, and Tawni
Hanseen Bugden, Attorneys for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 Antonio Dewayne Cegers was convicted of sexually
abusing his girlfriend’s daughter (M.F.) and one of M.F.’s
friends (S.B.). He now appeals his convictions for one count of
aggravated sexual abuse of a child, one count of sexual abuse of
a child, and one count of forcible sexual abuse.
¶2 Cegers raises four issues that we reach on appeal.
First, Cegers argues that the district court erred when it
allowed the State to admit testimony from M.F.’s high
school counselor that bolstered M.F.’s credibility. At trial,
State v. Cegers
M.F.’s counselor testified that she did not believe that
M.F. fabricated the allegations against Cegers to receive a
school scholarship. Because this testimony offered an opinion
as to M.F.’s truthfulness on a particular occasion, it
constituted impermissible bolstering. Although Cegers did
not raise a bolstering objection, we address the issue on appeal
because Cegers has successfully argued that the plain error
exception to the preservation rule applies. We conclude that the
admission of the counselor’s testimony, combined with the
district court’s subsequent instruction directing the jury to
consider the counselor’s opinion, amounted to plain error. And
because the State introduced no evidence of Cegers’s guilt apart
from the alleged victims’ testimony, Cegers was prejudiced by
the impermissible bolstering. Accordingly, we must vacate
Cegers’s convictions and remand to the district court for a new
trial.
¶3 Although we vacate his convictions based on
impermissible bolstering, we address three other issues
Cegers raises on appeal that may be relevant on remand.
With respect to his challenge to the sufficiency of the
evidence, we conclude that the victims’ testimony was not
so inherently improbable that it could not sustain his convictions
and affirm the district court’s denial of his motion for a
directed verdict. We also conclude that the jury instructions
did not misstate the law or mislead the jury with respect to
the intent elements of sexual abuse of a child and forcible
sexual abuse. Finally, the district did not err in declining
to review M.F.’s medical records in camera because Cegers did
not make a threshold showing that the records related to the
kind of condition contemplated by rule 506(d)(1) of the Utah
Rules of Evidence. Accordingly, we affirm the district court’s
rulings on these issues.
20161018-CA 2 2019 UT App 54State v. Cegers
BACKGROUND 1
¶4 In June 2011, S.B. disclosed to her brother, mother, and a
friend that Cegers had molested her while she was sleeping over
with M.F. S.B.’s mother reported Cegers to the police. Shortly
thereafter, the police met and spoke with M.F., the daughter of
Cegers’s girlfriend. M.F. told the police that she was not aware
that anything had happened to S.B. while she was at M.F.’s
home and that she herself had never been sexually abused by
Cegers.
¶5 Roughly four years later, Cegers and M.F.’s mother
separated. After M.F. and her mother moved out of Cegers’s
home following a domestic violence disturbance, M.F. told her
mother that Cegers had been sexually abusing her since she was
five years old. The next day, M.F. also confided in her school
counselor that Cegers had sexually abused her throughout her
childhood. After M.F. disclosed the abuse to her counselor, the
counselor contacted the police.
¶6 Upon receiving M.F.’s report of abuse, the State charged
Cegers with six counts of aggravated sexual abuse of a child, see
1. Ordinarily, we recite facts in a light most favorable to the
jury’s verdict, and present evidence that conflicts with the
verdict “only as necessary to understand the issues raised on
appeal.” State v. Bond, 2015 UT 88, ¶ 3 n.2, 361 P.3d 104(quotation simplified). Cegers was acquitted of five of the eight
charges against him. But because of the manner in which the
State charged the offenses, it is unclear what portion of the
evidence supports his convictions. As a result, we recite all of the
evidence as it was presented at trial with the acknowledgement
that the verdict suggests the jury did not find all of these facts to
be proven beyond a reasonable doubt.
20161018-CA 3 2019 UT App 54State v. Cegers
Utah Code Ann. § 76-5-404.1(4) (LexisNexis Supp. 2018), 2
relating to both S.B. and M.F., and two counts of forcible sexual
abuse, see id. § 76-5-404, relating to M.F.
¶7 Before trial, Cegers filed a motion to sever the charges
relating to M.F. and S.B. and a motion to allow Cegers to
subpoena M.F.’s medical and school records. The district court
denied the motion to sever, concluding that the charges relating
to S.B. were properly joined with the charges relating to M.F.
and that the joinder did not prejudice Cegers. The district court
also denied Cegers’s motion to subpoena M.F.’s medical,
counseling, and school records under rule 506(d)(1) of the Utah
Rules of Evidence. Regarding the medical records, which
included counseling records dating back to 1997 and counseling
records from some of the hospitals 3 that provided care for M.F.
after a suicide attempt in 2013, the court concluded that Cegers
had not shown that M.F. suffered from a relevant emotional
condition as required by rule 506(d)(1) and that he had not
shown with reasonable certainty that the records contained
exculpatory evidence. Regarding M.F.’s school records, the
district court denied Cegers’s request because the defense had
failed to “lay out what the standards of the expectations of
privacy are with respect to those records.”
2. Because the statutory provisions in effect at the relevant time
do not differ in any material way from the provision now in
effect, we cite the current version of the Utah Code.
3. As part of discovery, the State had already provided Cegers
with records from one hospital that provided care to M.F. after
her attempted suicide. Consequently, Cegers was requesting
records only from the care providers that had not already been
disclosed.
20161018-CA 4 2019 UT App 54State v. Cegers
¶8 Additionally, prior to presentation of the State’s evidence
at trial, Cegers objected to the “intent requirements” in the
element jury instructions for sexual abuse of a child and forcible
sexual abuse. Specifically, Cegers objected to the instructions’
inclusion of “knowingly” and “recklessly” as possible mental
states with which Cegers could have committed the touching
elements of both offenses, arguing that sexual abuse of a child
and forcible sexual abuse are “specific intent crime[s].” The
district court overruled Cegers’s objection, emphasizing that the
Model Utah Jury Instruction after which the instructions were
patterned accurately stated that “it is the more general mens rea
that applies with respect to the touching.”
¶9 At trial, the State introduced testimony from S.B., M.F.,
M.F.’s counselor, S.B.’s mother, S.B.’s brother, a friend of S.B.,
and M.F.’s mother. S.B. testified that M.F. was her “best friend”
until part way through junior high school and that she spent a
considerable amount of time at the home that Cegers shared
with M.F.’s mother, M.F., and Cegers’s other children. She
testified that she remained friends with M.F. until Cegers made
her feel too uncomfortable to return to their home.
¶10 S.B. described several incidents where Cegers touched
her sexually. According to her testimony, Cegers would wait
until she was alone with him and touch her breasts and groin
area over and under her clothing. She said these incidents took
place in Cegers’s home in the living room while she was
sleeping or lying on the couch or floor and in the kitchen
washing dishes.
¶11 M.F. testified that she was not aware that Cegers had
abused S.B. Although she remembered the police speaking
with her about S.B.’s allegations, according to M.F., neither
the police nor Cegers ever provided her with specific details.
But M.F. testified extensively about her own sexual abuse by
20161018-CA 5 2019 UT App 54State v. Cegers
Cegers, stating that Cegers began touching her sexually
when she was five years old and that the abuse continued into
her teenage years. According to M.F., Cegers repeatedly rubbed
her vagina over her clothes with his feet and hands, brushed his
hands underneath her breasts, and pressed his erect penis
against her. M.F. also described incidents where, while she was
sitting on the couch in Cegers’s living room, Cegers rubbed her
vagina over her clothes.
¶12 M.F. did not disclose Cegers’s conduct to anyone until she
was eighteen years old. According to M.F., Cegers’s relationship
with her mother and the other children in the home was tense.
M.F. felt that Cegers treated her as his “favorite” when she was
younger, but he would swear at, hit, and ground his biological
children. In addition, M.F.’s mother was financially unstable.
M.F. testified that, as a result, she felt her family would suffer if
she reported Cegers’s abuse. M.F. only disclosed Cegers’s abuse
to her mother during her senior year of high school. After an
altercation involving M.F., her mother, and Cegers that resulted
in M.F. and her mother moving out of their shared home, M.F.
admitted to her mother that Cegers had been abusing her since
she was a young child.
¶13 M.F.’s high school counselor testified that M.F. also
disclosed the sexual abuse to her the day after M.F. reported
the abuse to her mother. The counselor testified that she had
met with M.F. periodically following M.F.’s attempted suicide
years prior and continuing through M.F.’s senior year. During
this time, they spoke about M.F.’s discomfort at home, her
anxiety, and her academic plans. According to the counselor’s
testimony, because she had been meeting with M.F. for
some time, M.F.’s disclosure came as a surprise to her. The
counselor immediately reported the allegations to the police. The
police came to the school and interviewed M.F. in the
counselor’s office.
20161018-CA 6 2019 UT App 54State v. Cegers
¶14 Around this same time, M.F. applied for a scholarship
offered to students who had overcome substantial challenges. In
the scholarship application, M.F. included information about
Cegers’s abuse. When the State asked whether M.F.’s counselor
believed that M.F. fabricated her allegations against Cegers to
qualify for a scholarship, her counselor responded that the
suggestion was “the most absurd thing [she had] ever heard of.
There is––there is no way [she] would ever conceive that that
would be possible.” Cegers objected to this testimony, arguing
that the counselor was “speculating about what’s in somebody
else’s mind.” The district court overruled Cegers’s objection. The
counselor explained that she had not spoken with M.F. about the
scholarship any more than she had with other students, and she
was not sure when, in relation to M.F.’s reports of abuse, M.F.
had applied for the scholarship. 4 After the State concluded the
counselor’s direct examination and without prompting from
defense counsel or the prosecutor, the district court gave the
following instruction to the jury:
[W]ith respect to the question about the witness’[s]
view about whether [M.F.] would have been
fabricating in order to get a scholarship. I
overruled the objection that was made, which was
that a witness can’t testify about what’s in another
person’s mind, and that is correct. The witness
can’t testify about what’s in someone else’s mind.
So you are to consider her testimony in that regard
only to the extent that she was expressing her
opinion based on the period of time that she knew
the witness and the overall facts and
4. M.F. testified that she had applied for the scholarship the day
after she reported the abuse to the counselor.
20161018-CA 7 2019 UT App 54State v. Cegers
circumstances, but not because she has the ability
to know what another person is thinking.
¶15 After S.B., M.F., and the school counselor testified, the
State presented testimony from S.B.’s mother, S.B.’s brother, and
a friend of S.B., and M.F.’s mother. None of the subsequent
witnesses testified that they had witnessed or suspected any
sexually abusive behavior by Cegers against the victims. At the
conclusion of the State’s case in chief, Cegers made a motion for
a directed verdict, which the district court denied. Cegers then
testified in his own defense and denied ever touching the victims
in a sexually inappropriate manner.
¶16 The jury convicted Cegers of one count of aggravated
sexual abuse of a child relating to M.F., one count of sexual
abuse of a child relating to S.B., and one count of forcible sexual
abuse relating to M.F. Cegers appeals.
ISSUES AND STANDARDS OF REVIEW
¶17 Cegers contends that the district court erred by allowing
the State to admit testimony from the school counselor that
impermissibly bolstered M.F.’s credibility. If preserved, we
review the district court’s admission of testimony for an abuse of
discretion. State v. Iorg, 801 P.2d 938, 939 (Utah Ct. App. 1990).
But if a party fails “to raise a timely and specific objection” to the
district court’s evidentiary ruling, the defendant must show that
an exception to the preservation rule applies. State v. Johnson,
2017 UT 76, ¶¶ 18–19, 416 P.3d 443. Cegers argues that, if the
issue on appeal was not preserved below, the plain error
exception applies. “Under the plain error doctrine, we will
reverse the trial court’s ruling only if (i) an error exists; (ii) the
error should have been obvious to the trial court; and (iii) the
error is harmful, i.e., absent the error, there is a reasonable
20161018-CA 8 2019 UT App 54State v. Cegers
likelihood of a more favorable outcome for the defendant.” State
v. Diaz-Arevalo, 2008 UT App 219, ¶ 8, 189 P.3d 85.
¶18 Because we conclude that Cegers is entitled to a new trial
based on this evidentiary error, we must next decide whether
Cegers is subject to retrial. We review the district court’s denial
of Cegers’s motion for a directed verdict because, if the evidence
at trial was insufficient to sustain his convictions, double
jeopardy may bar retrial. See Burks v. United States, 437 U.S. 1, 17
(1978) (stating that “the purposes of the [Double Jeopardy]
Clause would be negated” were the government to be afforded
“an opportunity for the proverbial ‘second bite at the apple’”
after presenting insufficient evidence in the first instance); see
also State v. Lamorie, 610 P.2d 342, 347 (Utah 1980) (“Reversal and
remand for a new trial does not place the accused in double
jeopardy where the error giving rise to the reversal is merely
trial error, as distinguished from insufficiency of the evidence.”).
“We review a trial court’s ruling on a motion for directed verdict
for correctness.” State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d
1168. “We will uphold the trial court’s decision if, upon
reviewing the evidence and all inferences that can be reasonably
drawn from it, we conclude that some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” State v. Montoya,
2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation simplified).
¶19 We also reach two additional issues that are likely to
resurface on remand. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d
1132 (noting that “we retain the authority to reach issues when
we believe our analysis could prove helpful on remand”). 5
5. Cegers raises two other issues on appeal that we do not
address. Although we recognize that “it is our duty to pass upon
questions of law which may be pertinent and helpful in arriving
(continued…)
20161018-CA 9 2019 UT App 54State v. Cegers
Cegers contends that the district court erred by “improperly”
instructing the jury as to the intent element of the aggravated
sexual abuse of a child, sexual abuse of a child, and forcible
sexual abuse charges. A claim that the district court provided an
(…continued)
at a final determination of the case,” State v. Cloud, 722 P.2d 750,
755 (Utah 1986) (quotation simplified), the issues we decline to
address do not “fit within that category,” State v. Moore, 2009 UT
App 386, ¶ 11 n.5, 223 P.3d 1137. First, Cegers challenges the
district court’s denial of his motion to sever the charges relating
to M.F. from the charges relating to S.B. In denying Cegers’s
motion to sever, the district court considered the evidence
supporting the charges and allegations and determined (1)
whether the offenses charged are “based on the same conduct or
are otherwise connected together in their commission” or are
“alleged to have been part of a common scheme or plan” and (2)
whether the “defendant . . . is prejudiced by a joinder of
offenses.” Utah Code Ann. § 77-8a-1(1), (4)(a) (LexisNexis 2017).
Ordinarily, we would review both determinations for a clear
abuse of discretion. See State v. Hattrich, 2013 UT App 177, ¶ 8,
317 P.3d 433. But here, the jury acquitted Cegers of all but three
of the charges, only one of which related to S.B. And of the
offenses for which he was convicted, it is not readily apparent
what alleged conduct supported his conviction of which offense.
As a result, it is unlikely that the district court’s assessment of
evidence supporting joinder of the charges relating to S.B. and
M.F. would be the same on remand. We therefore see no value in
reviewing the court’s prior determination.
Second, Cegers claims that the district court’s errors
prejudiced him when viewed cumulatively. It is unnecessary to
consider this argument because we find that the evidentiary
error established on appeal resulted in prejudice and necessitates
a new trial.
20161018-CA 10 2019 UT App 54State v. Cegers
erroneous jury instruction presents a question of law that is
reviewed for correctness, “without deference to the trial court.”
State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.
¶20 Finally, Cegers contends that the district court erred by
denying his request for in camera review of M.F.’s medical
records. “Whether a trial court errs in denying a motion for
access to a victim’s mental health records is a question of
privilege.” State v. J.A.L., 2011 UT 27, ¶ 21, 262 P.3d 1. A district
court’s determination regarding the existence of a privilege or an
exception to that privilege also presents a question of law that
we review for correctness. Id.ANALYSIS
I. The Counselor’s Testimony
¶21 Cegers argues that the district court improperly admitted
testimony from M.F.’s high school counselor that impermissibly
bolstered M.F.’s allegations in violation of rule 608(a) of the Utah
Rules of Evidence. Cegers failed to properly raise this issue in
the district court. “A proper objection puts the judge on notice of
the asserted error and allows the opportunity for correction at
that time in the course of the proceeding.” State v. Dean, 2004 UT
63, ¶ 13, 95 P.3d 276 (quotation simplified). Here, Cegers
objected to the counselor’s trial testimony because the counselor
“was speculating about what’s in somebody else’s mind.” After
overruling the objection and permitting the counselor to
continue testifying, the district court instructed the jury that it
could not credit the counselor’s testimony as though “she has
the ability to know what another person is thinking.” Neither
Cegers’s objection to nor the district court’s instruction about the
counselor’s testimony invoked rule 608(a) or mentioned
bolstering, indicating that Cegers failed to adequately
communicate the basis for his objection. Cegers’s objection did
20161018-CA 11 2019 UT App 54State v. Cegers
not put the district court on notice and consequently failed to
preserve the issue for appeal. See id. But because we agree with
Cegers that the plain error exception to the preservation rule
applies to the circumstances of this case, we review the court’s
admission of the challenged testimony for plain error. See State v.
Adams, 2000 UT 42, ¶ 9, 5 P.3d 642.
¶22 “In order to obtain a new trial under the doctrine of plain
error, [a defendant] must show that the district court committed
error, that the error should have been obvious to the district
court, and that the error prejudiced [the defendant] by creating a
reasonable likelihood of a less favorable result.” State v. Bragg,
2013 UT App 282, ¶ 29, 317 P.3d 452. “If any one of these
requirements is not met, plain error is not established.” State v.
Diaz-Arevalo, 2008 UT App 219, ¶ 13, 189 P.3d 85 (quotation
simplified). Because Cegers has met all three requirements, we
conclude that he is entitled to a new trial.
A. Error
¶23 Cegers contends that the district court committed error
when it allowed the counselor to testify that she did not believe
M.F. would have fabricated her allegations against Cegers to get
a school scholarship. Under rule 608(a) of the Utah Rules of
Evidence, once a witness’s character for truthfulness has been
attacked, that witness’s credibility may be “supported by
testimony about the witness’s reputation for having a character
for truthfulness . . . , or by testimony in the form of an opinion
about that character.” Utah R. Evid. 608(a). But “rule 608(a)
prohibits any testimony as to a witness’s truthfulness on a
particular occasion.” State v. Bragg, 2013 UT App 282, ¶ 31, 317
P.3d 452 (quotation simplified).
¶24 Here, the counselor’s opinion that the M.F. would not
fabricate a story of abuse to get a scholarship was not an opinion
about M.F.’s general character for truthfulness, but “a direct
20161018-CA 12 2019 UT App 54State v. Cegers
opinion of another witness’s truthfulness on a particular
occasion.” See State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 984(quotation simplified). This evidence is indistinguishable from
testimony previously held to be inadmissible bolstering. See, e.g.,
State v. Adams, 2000 UT 42, ¶ 11, 5 P.3d 642 (holding that a
detective’s testimony that, in his opinion, when he interviewed
the victim, she did not appear to be coached was bolstering);
State v. Rimmasch, 775 P.2d 388, 393 (Utah 1989) (holding that an
expert’s testimony that he did not think the victim had a motive
to lie about her abuse was bolstering), superseded by rule as stated
in State v. Maestas, 2012 UT 46, 299 P.3d 892; State v. Vail, 2002 UT
App 176, ¶¶ 6, 15, 51 P.3d 1285 (holding that a detective’s
testimony that the victim displayed typical indicators of
credibility and trustworthiness during her interview was
bolstering); State v. Stefaniak, 900 P.2d 1094, 1095 (Utah Ct. App.
1995) (holding that a social worker’s testimony that the victim
“seemed to be quite candid about what she was telling me” was
bolstering (quotation simplified)).
¶25 For example, in Bragg, we held that testimony from a
police detective that commented on the veracity of the victim’s
statements during an interview was impermissible bolstering.
2013 UT App 282, ¶ 31. In Bragg, the testifying detective had
personally interviewed the victim about the defendant’s alleged
sexual abuse. Id. ¶ 29. At trial, he testified that the victim
“appear[ed] to be genuine” and did not appear to be “parroting
a story.” Id. ¶ 30 (quotation simplified). Because these statements
were a “direct comment on [the victim’s] truthfulness” on a
particular occasion, we agreed with the defendant that the
district court erred by allowing the detective’s statements to be
admitted. Id. ¶¶ 30–31.
¶26 Similarly, here, the counselor testified that she did not
think that M.F. had lied about the abuse to get a scholarship. In
context, the counselor was offering a “direct opinion” as to
20161018-CA 13 2019 UT App 54State v. Cegers
M.F.’s truthfulness on a particular occasion, namely, when M.F.
stated in her scholarship application that Cegers had abused her.
¶27 A second error occurred when the district court
commented on this evidence at the conclusion of the counselor’s
testimony. Without prompting or input from counsel, the court
instructed the jury, “You are to consider [the counselor’s]
testimony in that regard only to the extent that she was
expressing her opinion based on the period of time that she
knew the witness and the overall facts and circumstances, but
not because she has the ability to know what another person is
thinking.” 6 The limitation—“but not because she has the ability
to know what another person is thinking”—appears to have
been aimed at addressing the misplaced speculation objection.
However, the remainder of the instruction told the jury to weigh
the counselor’s testimony that M.F. had not lied to get the
scholarship in light of the counselor’s familiarity with M.F. and
understanding of the facts and circumstances. In effect, this
instruction advised the jury that it should consider the
counselor’s opinion bolstering M.F.’s allegations against Cegers
given the counselor’s close relationship with M.F.
¶28 The instruction suggests that the district court may have
viewed the counselor’s testimony as “testimony about the
witness’s reputation for having a character for truthfulness or
untruthfulness,” which is admissible under rule 608(a). If the
counselor had testified more generally that M.F. is not the type
of person who would falsely accuse someone for personal gain,
the court may well have been correct to instruct the jury that the
counselor’s testimony could be considered “only to the extent
6. Unlike many instructions, which provide that a jury “may”
consider certain evidence, the curative instruction here directed:
“You are to consider [the counselor’s] testimony. . . .”
20161018-CA 14 2019 UT App 54State v. Cegers
that she is expressing her opinion”—presumably, as to M.F.’s
reputation for truthfulness—“based on the period of time that
she knew the witness and the overall facts and circumstances.”
But the counselor’s testimony was limited to whether M.F. had
been truthful on a particular occasion—when she alleged in her
scholarship application that Cegers had abused her. See Bragg,
2013 UT App 282, ¶ 31 (“[R]ule 608(a) prohibits any testimony as
to a witness’s truthfulness on a particular occasion.” (quotation
simplified)). As a result, the instruction directed the jury to give
weight to the counselor’s opinion that M.F. had not fabricated
the allegations in her scholarship application if the jury believed
the counselor had sufficient knowledge of M.F. and the
surrounding circumstances. Rather than ameliorate against the
likelihood that the jury would consider the evidence for an
improper purpose, the instruction compounded the error.
B. Plain or Obvious
¶29 We next consider whether the error should have been
plain or obvious to the district court. Unlike most cases in which
the defendant argues plain error on appeal, Cegers did not
simply fail to raise an objection, but instead he raised the wrong
objection. By objecting to the counselor’s testimony on the
ground that she was “speculating about what’s in somebody
else’s mind,” Cegers misdirected the court to the rules requiring
that lay witness testimony be based on firsthand knowledge. See
Utah R. Evid. 602; id. R. 701; see also R. Collin Mangrum & Dee
Benson, Mangrum & Benson on Utah Evidence 571 (2018) (noting
that “the common law objection of ‘speculative’ was commonly
raised, suggesting that something about the witnesses’ statement
was not based on first-hand knowledge”).
¶30 Although it is difficult to expect a district court to
recognize an evidentiary error under such circumstances, we
have previously held that the admission of testimony similar to
20161018-CA 15 2019 UT App 54State v. Cegers
the counselor’s was plain error. In State v. Hoyt, 806 P.2d 204(Utah Ct. App. 1991), for example, we held that the admission of
expert testimony that a child sexual abuse victim was “truthful
in her allegations” was plainly erroneous, violating “a time-
honored principle of evidence.” Id. at 210–11 (quotation
simplified). Additionally, in State v. Adams, 955 P.2d 781 (Utah
Ct. App. 1998), we concluded, and the State conceded on appeal,
that a detective’s testimony that he “did not believe [the victim]
had been coached” obviously violated rule 608(a). Id. at 785–86.
Similarly, here, M.F.’s counselor testified that she did not believe
M.F. was fabricating the allegations in her scholarship
application. We cannot distinguish this testimony from the
impermissible bolstering we have previously deemed to be
plainly inadmissible.
¶31 But even were we not convinced that the counselor’s
testimony itself obviously violated the rules of evidence, the
initial error cannot be disassociated from the court’s instruction
directly following this testimony. The court’s subsequent
instruction had the unintended consequence of exacerbating the
bolstering problem by instructing the jury to consider the
counselor’s testimony “to the extent that she was expressing her
opinion based on the period of time that she knew the witness
and the overall facts and circumstances.” 7 Even if the initial
bolstering was insufficiently obvious to expect a district court to
recognize the error and intervene sua sponte, the subsequent
error in commenting on the testimony was more obvious. The
7. Some courts have held it plain error not to give a curative
instruction when impermissible bolstering occurs. See People v.
Garrett, No. 338311, 2019 WL 97129, at *4 (Mich. Ct. App. Jan. 3,
2019). Giving an instruction that directs the jury to consider the
bolstering testimony more easily meets the definition of plain
error.
20161018-CA 16 2019 UT App 54State v. Cegers
curative instruction was issued after the district court had the
opportunity to reflect on the admissibility of the testimony and
to consider how the jury would evaluate the counselor’s
testimony in light of the court’s directive. And the prospect of
commenting on the testimony, without a request or other input
from counsel, would surely give the district court pause. Under
the totality of the circumstances, we conclude that the error was
plain.
C. Prejudice
¶32 Having concluded that admission of the counselor’s
testimony and the court’s subsequent instruction were plainly
erroneous, we now determine whether the error was harmful.
State v. King, 2010 UT App 396, ¶ 19, 248 P.3d 984. “An error is
harmful if, absent the error, there is a reasonable likelihood of a
more favorable outcome for the defendant or our confidence in
the verdict is undermined.” State v. Perez, 946 P.2d 724, 728 (Utah
Ct. App. 1997) (quotation simplified).
¶33 In the past, we have held that the admission of testimony
that impermissibly bolsters a victim’s credibility is harmful
when the case against a defendant “hinged entirely on the
credibility of the victim.” State v. Stefaniak, 900 P.2d 1094, 1096
(Utah Ct. App. 1995); see also State v. Iorg, 801 P.2d 938, 941–42
(Utah Ct. App. 1990). In Stefaniak, for example, we determined
that the admission of bolstering testimony was prejudicial when
the State produced no physical evidence of the crime or
testimony from third parties who had witnessed the alleged
abuse and when the victim’s “report was first made several
months after the incident, in the midst of domestic turmoil
between the victim’s mother and [the defendant].” 900 P.2d at
1096.
¶34 In contrast, in State v. Adams, 2000 UT 42, 5 P.3d 642, our
supreme court determined that the defendant was not
20161018-CA 17 2019 UT App 54State v. Cegers
prejudiced by the admission of impermissible bolstering
testimony when “the record reveal[ed] ample evidence upon
which the jury could have convicted” the defendant of forcible
sexual abuse. Id. ¶ 21. In addition to the victim’s testimony, the
State had offered testimony from the victim’s mother that she
saw the defendant leaving the victim’s room naked; testimony
from the defendant that he was intoxicated and did not
remember the incident; and testimony from a doctor that the
victim suffered from severe intellectual disabilities, making it
improbable that she fabricated her allegations. Id. ¶¶ 21–22.
¶35 Here, the facts more closely resemble those in Stefaniak
than those in Adams. The only direct evidence of Cegers’s
abuse of S.B. and M.F. was their own testimony. They both
described similar incidents in which Cegers touched or
attempted to touch their genitals while they were asleep or about
to fall asleep. As is often the case with sexual abuse, the State
had no other evidence to corroborate the victims’ allegations.
Neither S.B.’s mother, nor brother, nor her friend testified that
they had witnessed any sexually abusive or suspicious behavior
by Cegers. M.F.’s mother testified that she never suspected that
Cegers was sexually abusing her daughter and that she was
surprised when M.F. disclosed the abuse to her. M.F. herself
testified that she never witnessed Cegers behave in a sexually
inappropriate manner toward S.B., even though S.B. testified
that M.F. was in the room during some of the incidents of abuse.
Cegers also categorically denied both victims’ allegations. And
although the school counselor had been meeting with M.F. for
some time, she testified that M.F. had never reported the abuse
to her before.
¶36 In addition, M.F. provided conflicting reports to the police
about Cegers’s abuse. When the police spoke with her after S.B.
reported Cegers’s abuse, M.F. denied that Cegers had ever
touched her inappropriately. When she reported her own abuse
20161018-CA 18 2019 UT App 54State v. Cegers
years later, M.F. alleged that Cegers had been abusing her since
she was five, well before her first conversation with the police
about Cegers. Furthermore, just as in Stefaniak, M.F. reported her
abuse “in the midst of domestic turmoil” between her mother
and the alleged perpetrator of her abuse. See 900 P.2d at 1096.
¶37 Given that the jury’s verdict hinged on its assessment of
the victims’ credibility, the counselor’s testimony bolstering
M.F.’s credibility carried significant weight, made heavier by the
district court’s instruction to the jury that it could consider the
counselor’s “opinion based on the period of time that she knew
the witness and the overall facts and circumstances.” This
instruction suggested that the jury should weigh the counselor’s
opinion as to whether M.F. should be believed in light of the
counselor’s testimony that she had spent considerable time with
M.F. and was aware of the circumstances of her personal and
family life. In effect, the district court inadvertently instructed
the jury to consider the counselor’s testimony in precisely the
manner rule 608 prohibits.
¶38 If the jury credited the counselor’s testimony that M.F.
had been honest when reporting the abuse, it was not only more
likely to believe M.F.’s account but also more likely to believe
S.B.’s similar allegations against Cegers. M.F.’s allegations of
abuse carried the implication that Cegers had a propensity to
sexually abuse minor females and suggested that it was more
likely that S.B. was abused in a similar manner. See State v. Ring,
2018 UT 19, ¶ 30, 424 P.3d 845 (stating that evidence that the
defendant had committed other similar child sex abuse offenses
suggested that “he had the propensity to commit the alleged
crime”). As a result, the potentially prejudicial impact of the
inadmissible testimony was not limited to the counts involving
M.F. Rather, there is a reasonable probability that the counselor’s
testimony bolstering M.F.’s allegations influenced the jury’s
decision to convict Cegers of sexual abuse against S.B. as well.
20161018-CA 19 2019 UT App 54State v. Cegers
¶39 In light of these facts, “we cannot say that absent the error
there is not a reasonable likelihood of a more favorable result.”
See Iorg, 801 P.2d at 942. “This case depended on the jury’s
assessment of the victim[s’] credibility versus the defendant’s,
and there is not other evidence to support the defendants’
conviction[s] beyond that which is tainted by improper
testimony.” See Stefaniak, 900 P.2d at 1096 (quotation simplified).
We therefore conclude that Cegers was prejudiced by the
admission of the counselor’s impermissible bolstering testimony
and accordingly reverse on this issue.
II. Sufficiency of the Evidence
¶40 Next, Cegers argues that the district court erred when it
denied his motion for a directed verdict because the testimony of
M.F. and S.B. was incredible or “inherently improbable” and
was therefore insufficient to sustain his convictions. We
disagree.
¶41 “When the evidence presented [at trial] is conflicting or
disputed, the jury serves as the exclusive judge of both the
credibility of witnesses and the weight to be given particular
evidence.” State v. Workman, 852 P.2d 981, 984 (Utah 1993). As a
result, “we are not . . . in the business of reassessing or
reweighing evidence, and we resolve conflicts in the evidence in
favor of the jury verdict.” State v. Prater, 2017 UT 13, ¶ 32, 392
P.3d 398 (quotation simplified). But in “unusual circumstances,
. . . the testimony presented to the jury [can be] so unreliable that
it cannot form the basis of a conviction.” Id. (quotation
simplified). “[S]uch an unusual circumstance exists when
witness testimony is so inconclusive or inherently improbable
that it could not support a finding of guilt beyond a reasonable
doubt.” Id. (quotation simplified).
¶42 Testimony is inherently improbable when it describes “an
action that was physically impossible” or is “manifestly false
20161018-CA 20 2019 UT App 54State v. Cegers
‘without any resort to inferences or deductions.’” Id. (quoting
Workman, 852 P.2d at 984). Inherently improbable testimony also
includes “circumstances where a witness’s testimony is
incredibly dubious and, as such, apparently false.” State v.
Robbins, 2009 UT 23, ¶ 18, 210 P.3d 288. For example, in Robbins,
the combination of “the inconsistencies in the child’s testimony
plus the patently false statements the child made plus the lack of
any corroboration” led our supreme court to conclude that the
child’s testimony was “apparently false” and insufficient to
support the convictions. Prater, 2017 UT 13, ¶¶ 38–39 (discussing
Robbins, 2009 UT 23, ¶ 22).
¶43 Cegers contends that, like the testimony in Robbins, the
testimony of both M.F. and S.B. was inconsistent, contained
patently false statements, and lacked corroboration. While S.B.
and M.F. describe similar instances of abuse, and thereby
corroborate each other to some degree, it is true that neither S.B.
nor M.F.’s testimony is independently supported by other
corroborating evidence. See supra ¶ 35. In addition, we recognize
that M.F. initially denied the abuse occurred, which was
certainly inconsistent with her trial testimony. See supra ¶ 36. But
“pre-trial inconsistent statements do not render [a witness’s]
testimony ‘apparently false.’” Prater, 2017 UT 13, ¶ 39. “The
question of which version of [M.F.’s story] was more credible is
the type of question we routinely require juries to answer.” See
id.¶44 Moreover, Cegers has not shown that the victims’
testimony contained “patently false statements.” Cegers first
argues that S.B.’s testimony that Cegers abused her when M.F.
was present was patently false because M.F. testified that she
never witnessed any abuse. The mere fact that M.F. did not see
the abuse does not make S.B.’s testimony patently false,
especially when S.B. testified that Cegers touched her in a
surreptitious manner, by reaching under a blanket or between
20161018-CA 21 2019 UT App 54State v. Cegers
her body and a countertop, and when S.B. never claimed that
M.F. had actually witnessed the abuse.
¶45 Cegers also contends that M.F.’s testimony was patently
false because she disclosed to her counselor that Cegers told her,
“do me,” but she did not recount this detail in her own
testimony at trial. Testimony is not patently false merely because
it fails to include every detail contained in the witness’s prior
statements. M.F. did not deny that she made this statement to
the counselor nor did she testify in a manner that contradicted
this prior statement.
¶46 Finally, Cegers contends that because “[M.F.] had a
significant motive to fabricate after her mother’s breakup with
Cegers left them without a house,” her allegations were patently
false. A motive to lie does not “automatically render [a
witness’s] testimony apparently false.” Prater, 2017 UT 13, ¶ 41.
Instead, it “goes to the weight and credibility of the testimony.”
Id. Cegers had an adequate opportunity to present this theory to
the jury and to attack M.F.’s credibility on this basis. “[W]e will
not act as a second trier of fact.” Id. (rejecting the defendant’s
argument that the witnesses’ motive to lie in return for a plea
bargain “automatically render[ed] their testimony apparently
false” where defense “counsel had every opportunity to attack
the witnesses’ credibility because of the plea deals and to argue
accordingly in front of the jury”).
¶47 Cegers has not established that this is an “unusual
circumstance” where “the testimony presented to the jury was so
unreliable that it cannot form the basis of a conviction.” See id.
¶ 32. Although the credibility challenges in this case weighed
heavily in favor of finding the evidentiary error prejudicial,
nothing about the victims’ testimony was “apparently false.”
Unlike the testimony in Robbins, the testimony of the victims was
neither internally inconsistent nor patently false. Therefore,
20161018-CA 22 2019 UT App 54State v. Cegers
Cegers has not demonstrated that the victims’ testimony was so
inconclusive or inherently improbable that no reasonable jury
could have relied upon such evidence to convict. Accordingly,
the district court properly declined to second-guess the jury’s
credibility determinations and denied Cegers’s motion for a
directed verdict.
III. Jury Instruction
¶48 Cegers also argues that the district court committed
reversible error “when it instructed the jury that, although
specific intent was an element of the crime of sexual abuse, a
mental state as low as recklessness was sufficient.” “The general
rule for jury instructions is that an accurate instruction upon the
basic elements of an offense is essential,” State v. Bird, 2015 UT 7,
¶ 14, 345 P.3d 1141 (quotation simplified), but we also review
“the jury instructions in their entirety and will affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case,” State v. Lambdin, 2017 UT 46, ¶ 41, 424
P.3d 117 (quotation simplified). We conclude that, taken as a
whole, the jury instructions at issue here fairly represented the
applicable law and accurately instructed the jury as to the
elements of sexual abuse of a child and forcible sexual abuse.
¶49 Under Utah Code sections 76-5-404.1(2) and 76-5-404(1),
which enumerate the elements of sexual abuse of a child and
forcible sexual abuse, the State is required to prove beyond a
reasonable doubt that the defendant committed either offense
with the intent to “cause substantial emotional or bodily pain to
any individual or with the intent to arouse or gratify the sexual
desire of any individual.” But, as our supreme court has
previously acknowledged, the crime of forcible sexual abuse
“contains two elements of intent: a general intent to take
indecent liberties or touch the anus or genitals of another
without that person’s permission and the specific intent or
20161018-CA 23 2019 UT App 54State v. Cegers
purpose to cause substantial emotional or physical pain or to
sexually arouse or gratify any person.” Adams v. State, 2005 UT
62, ¶ 21, 123 P.3d 400 (quotation simplified). Citing Adams, this
court has similarly acknowledged that the offense of sexual
abuse of a child requires proof that a defendant had both the
“general intent to touch and a specific intent to cause pain or to
arouse or gratify sexual desires.” State v. Sellers, 2011 UT App 38,
¶ 5, 248 P.3d 70; see also State v. Carrell, 2018 UT App 21, ¶ 27, 414
P.3d 1030 (stating that the Model Utah Jury Instructions for
sexual abuse of a child, which includes both a general and a
specific intent requirement, “correctly state the law”).
¶50 Here, the jury was instructed as to both intent
requirements for each of the forcible sexual abuse and sexual
abuse of a child charges against Cegers. In relevant part,
instructions 27 and 28, which mirror the Model Utah Jury
Instruction, instructed the jury that it could convict Cegers of
sexual abuse of a child only if it found beyond a reasonable
doubt that Cegers:
2. Intentionally, knowingly, or recklessly:
a. touched the anus, buttocks, or genitals, of
[M.F. and S.B.], even if accomplished through
clothing; or
b. touched [M.F.’s and S.B.’s] breast[s], even
if accomplished though clothing; or
c. took indecent liberties with [M.F. and
S.B.]; or
d. caused [M.F. and S.B.] to take indecent
liberties with [Cegers] or another; and
3. Did so with the intent to:
a. cause substantial emotional or bodily pain
to any person; or
b. arouse or gratify the sexual desire of any
person; and
20161018-CA 24 2019 UT App 54State v. Cegers
4. [M.F. and S.B. were] under 14 years old at the
time of the conduct.
Similarly, in relevant part, instruction 29 instructed the jury that
it could convict Cegers of forcible sexual abuse only if it found
beyond a reasonable doubt that Cegers:
2. Intentionally, knowingly, or recklessly:
a. touched the skin of [M.F.’s] anus,
buttocks, or genital; or
b. touched the skin of [M.F.’s] breast; or
took indecent liberties with M.F.; or
d. caused [M.F.] to take indecent liberties
with [Cegers];
3. Without [M.F.’s] consent;
4. [Cegers] acted with intent, knowledge or
recklessness that [M.F.] did not consent;
5. Did so with the intent to:
a. cause substantial emotional or bodily pain
to any person, or
b. arouse or gratify the sexual desire of any
person[.]
¶51 Cegers contends that these instructions were erroneous
both because they (1) misstate the law with regard to the crimes
of sexual abuse of a child and forcible sexual abuse, and (2)
likely misled the jury into believing that the State only needed to
prove that Cegers acted “knowingly” or “recklessly” with
respect to all elements and did not need to prove specific intent.
We disagree with both of Cegers’s arguments.
¶52 Instructions 27, 28, and 29 accurately state the law relating
to forcible sexual abuse and sexual abuse of a child. The statutes
proscribing both offenses prohibit conduct that is carried out
with the specific intent to cause substantial emotional or bodily
pain or gratify sexual desire. See Utah Code Ann. § 76-5-404.1(2);
20161018-CA 25 2019 UT App 54State v. Cegers
id. § 76-5-404(1). And although neither statute expressly attaches
a general intent requirement to the touching or indecent liberties
elements, our courts have interpreted both statutes to contain
two intent requirements: a general intent to touch and a specific
intent to cause pain or to arouse or gratify sexual desires. See
Adams, 2005 UT 62, ¶ 21 (stating that the offense of forcible
sexual abuse “contains two elements of intent: a general intent to
take indecent liberties or touch the anus or genitals of another
without that person’s permission and the specific intent or
purpose to cause substantial emotional or physical pain or to
sexually arouse or gratify any person” (quotation simplified));
Sellers, 2011 UT App 38, ¶ 5 (stating that the offense of sexual
abuse of a child requires proof that a defendant had both the
“general intent to touch and a specific intent to cause pain or to
arouse or gratify sexual desires”).
¶53 In addition, we do not agree that the inclusion of
“intentionally, knowingly, or recklessly” along with “with the
intent to cause substantial emotional or bodily pain to any
person, or arouse or gratify the sexual desire of any person” in
the same instruction misled the jury into believing the latter
intent did not apply. Although the district court instructed the
jury that it had to find that Cegers “intentionally, knowingly, or
recklessly” touched, took indecent liberties with S.B. and M.F., or
caused S.B. and M.F to take indecent liberties, the jury was also
instructed that it had to find that Cegers “did” those acts with
the specific intent prescribed by sections 76-5-404.1(2) and 76-5-
404(1). Indeed, in all three instructions, the requirement that
Cegers “did so with the intent to cause substantial emotional or
bodily pain to any person, or arouse or gratify the sexual desire
of any person” is listed as a separate element of the offense.
Consequently, the instructions necessarily required the jury to
find, beyond a reasonable doubt, that Cegers acted with specific
intent to cause substantial emotional or bodily pain or gratify
sexual desire.
20161018-CA 26 2019 UT App 54State v. Cegers
¶54 Because the jury instructions at issue here neither
misstated the applicable law nor misled the jury, the district
court did not err in instructing the jury as to the intent
requirements of forcible sexual abuse and sexual abuse of a
child.
IV. M.F.’s Medical Records
¶55 Finally, Cegers argues that the district court erred when it
denied his request for an in camera review of M.F.’s medical
records, specifically, records “addressing medical treatment
related to M.F.’s suicide attempt on or about March 10, 2013.”
Because Cegers failed to show that the medical records
contained evidence that M.F. experienced a mental or emotional
condition supporting an element of his defense, we conclude
that the district court correctly denied Cegers’s request for in
camera review.
¶56 Under rule 506 of the Utah Rules of Evidence, patients
have a presumptive “privilege . . . to refuse to disclose and to
prevent any other person from disclosing information that is
communicated in confidence to a physician or mental health
therapist for the purpose of diagnosing or treating the patient.”
Utah R. Evid. 506(b). Nevertheless, there are circumstances
under which “otherwise privileged communications between a
crime victim and her [physician or mental health] therapist
might be subject to in camera review and disclosure.” State v.
Blake, 2002 UT 113, ¶ 19, 63 P.3d 56. Two showings are required
to be entitled to in camera review. First, the proponent must
show that communications between the patient and physician or
mental health therapist are “relevant to an issue of the physical,
mental, or emotional condition of the patient” and support “an
element of any claim or defense.” Utah R. Evid. 506(d)(1)(A).
Second, the proponent must show “with reasonable certainty”
that “exculpatory evidence exists [within the communications]
20161018-CA 27 2019 UT App 54State v. Cegers
which would be favorable to [the] defense.” State v. Cardall, 1999
UT 51, ¶ 30, 982 P.2d 79.
¶57 In this case, Cegers failed to make the first showing.
“[T]he threshold test of a rule 506(d)(1) exception is whether the
party seeking in camera review of privileged records has
sufficiently alleged that the witness’[s] mental or emotional
condition itself is an element of any claim or defense.” State v.
Worthen, 2009 UT 79, ¶ 19, 222 P.3d 1144. In other words, a
district court must first “determine whether the patient suffers
from a physical, mental, or emotional condition as opposed to
mental or emotional problems that do not rise to the level of a
condition” before engaging in further analysis of the request for
in camera review. State v. J.A.L., 2011 UT 27, ¶ 48, 262 P.3d 1.
Under the rule 506(d)(1) exception to the medical records
privilege, a physical, mental, or emotional condition is more
than a “mere expression[] of emotion” that is “transitory or
ephemeral.” Worthen, 2009 UT 79, ¶ 21. Rather, “[a] mental or an
emotional condition is a state that persists over time and
significantly affects a person’s perceptions, behavior, or decision
making in a way that is relevant to the reliability of the person’s
testimony.” Id. Thus, “‘condition’ denotes a longer-lasting
mental state than momentary ‘emotion,’ ‘feeling,’ or ‘pain.’” Id.(quotation simplified).
¶58 Analyzing the “condition” requirement of rule 506(d)(1),
our supreme court has decided two cases that inform our
analysis of Cegers’s request for in camera review of M.F.’s
medical records. First, in Cardall, the supreme court addressed
circumstances where a defendant charged with rape of a child
requested review of the alleged victim’s “school psychological
records,” including an “anxiety exam” administered by a school
counselor and any information pertaining to the victim’s prior
false allegations of sexual abuse against the school janitor. 1999
UT 51, ¶ 10 (quotation simplified). The court concluded that the
20161018-CA 28 2019 UT App 54State v. Cegers
defendant had met his burden of showing that the subject of the
requested records experienced a “physical, mental, or emotional
condition” that supported an element of his defense by asserting
that the victim was “a habitual liar, that she fabricated her story
about being raped, that she is mentally and emotionally
unstable, and that the records show that on at least one previous
occasion these psychological traits led her to lie about an
attempted rape or sexual touching by the school janitor.” Id.
¶ 29. In a subsequent case, Worthen, our supreme court
explained that the Cardall court had “seized upon the term
‘psychological traits’ to describe [the defendant’s] assertions that
his alleged victim was a habitual liar, a fabricator, and mentally
and emotionally unstable” and, “[t]ellingly, these psychological
traits were accompanied by false allegations of sexual
misconduct against a school janitor.” 2009 UT 79, ¶ 23. The court
noted it was “more likely than not that none of the victim’s
traits, taken alone, would have established the existence of an
emotional condition.” Id.¶59 In Worthen, the supreme court determined that the
victim’s “‘frustration with, and hatred toward’ her parents [was]
an emotional condition contemplated by [rule 506(d)(1)].” Id.
¶ 28. The defendant, who was the adoptive father of the alleged
victim, argued that the victim harbored “extreme hatred
toward[] her parents, which drove her to explore a way to escape
[their] home[,] . . . motivated her attempted suicide, found voice
in her violent journal entries, and led her to fabricate abuse
allegations.” Id. ¶ 25. To support this claim, the defendant
requested in camera review of the victim’s medical records for
communications pertaining to the victim’s prior denial of abuse
by the defendant, “cognitive problems and major
misinterpretation problems,” and “motive to fabricate the
allegations stemming from her hatred of her parents.” Id. ¶ 6
(quotation simplified). Our supreme court concluded that
because the victim “demonstrated persistent hostility toward[]
20161018-CA 29 2019 UT App 54State v. Cegers
her parents and repeatedly expressed her desire to leave the
home,” “the chronic and persistent nature” of her anger and
hatred amounted to a condition, which was an element of the
defense’s claim that the victim had a motive to fabricate
allegations of abuse. Id. ¶ 28. The court stressed, however, “that
the fact that [the victim] may have made statements to her
therapist that simply conveyed her emotions or feelings does not
by itself constitute a mental or emotional condition under the
rule merely because those communications may be used for
specific impeachment purposes.” Id. ¶ 29. The court added, “[i]f
feelings themselves were to constitute a mental or emotional
condition, the exception to the psychotherapist-patient privilege
would devour the privilege.” Id. ¶ 27.
¶60 Here, Cegers has not demonstrated that the
communications contained in M.F.’s medical records reflect a
“condition.” He represents that the hospital records turned over
by the State show that M.F. “reported at the time of her suicide
attempt that her depression was ‘occasioned by increased fights
with [Cegers] over household chores and being able to spend
time with her friends’ and she had suicidal thoughts due to
ongoing marital discord and the threat of [Cegers and her
mother] separating.” But Cegers does not contend that M.F.’s
depression, by itself, is relevant to an element of his claim or
defense. Rather, he contends that “frustration with Cegers over
his management of the household and his relationship with
[M.F.’s] mother” rose to the level of a “diagnosable condition,”
adding that “[d]epression based on parental discord and
frustration over Cegers’s management of the household is the
kind of condition contemplated in Worthen.”
¶61 Although persistent depression may be a mental or
emotional condition, Cegers does not claim that M.F.’s
depression was the condition that led to the allegedly false
accusations of sexual abuse. Unlike the “psychological traits” in
20161018-CA 30 2019 UT App 54State v. Cegers
Cardall and Worthen that made it more likely that the victims
may have fabricated their stories, Cegers did not claim that
M.F.’s depression affected her “perceptions, behavior, or
decision making in a way that is relevant to the reliability of
[her] testimony.” See Worthen, 2009 UT 79, ¶ 21. Instead, Cegers
argued that M.F.’s negative feelings toward Cegers—not her
depression—motivated her to lie. The statements M.F. made to
mental health professionals regarding those feelings might have
been used to impeach her at trial, but “feelings themselves are
not a mental or emotional condition contemplated under the
rule.” Id. ¶ 27.
¶62 Ultimately, this case is distinguishable from Cardall and
Worthen because Cegers has not alleged that M.F. suffered from a
psychological condition that would cause her to fabricate sexual
abuse allegations. See Cardall, 1999 UT 51, ¶ 29; see also Worthen,
2009 UT 79, ¶ 23. The alleged motivation for M.F. to lie relates
not to a chronic and persistent “condition,” but to her expressed
feelings about Cegers. Such feelings alone do not constitute a
mental condition under rule 506(d)(1). To hold otherwise would
expand the exception to an important privilege so far as to
“devour the privilege” itself. See Worthen, 2009 UT 79, ¶ 27. We
agree with the district court that “a showing hasn’t been made
that the kind of condition contemplated by rule 506(d)(1) has
been established in this case” and affirm its denial of Cegers’s
request for in camera review.
CONCLUSION
¶63 We conclude that the district court did not err in denying
Cegers’s motion for a directed verdict, in instructing the jury as
to the intent elements of sexual abuse of a child and forcible
sexual abuse, and in denying Cegers’s request for in camera
review of M.F.’s medical records. However, because Cegers has
20161018-CA 31 2019 UT App 54State v. Cegers
established that the admission of the counselor’s bolstering
testimony was plain error, we vacate his convictions and remand
to the district court for a new trial.
20161018-CA 32 2019 UT App 54