State v. Boyer

2020 UT App 23THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MARK BOYER,
Appellant.
Opinion
No. 20170423-CA
Filed February 13, 2020
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 131902296
Elizabeth Hunt, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
Troy L. Booher and Freyja Johnson, Attorneys for
Amicus Curiae Victim V.M.
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
HAGEN, Judge:
¶1 A jury convicted Mark Boyer of aggravated sexual abuse
of a child, rape of a child, and sodomy upon a child. He now
appeals, arguing that the district court abused its discretion in
denying his motion for a new trial based on ineffective assistance
of counsel. He also argues that the district court erred in denying
his motions to recuse and to reconstruct the record. Because we
are unpersuaded that trial counsel provided ineffective
assistance or that the district court erred in its evidentiary and
recusal rulings, we affirm.
State v. Boyer
BACKGROUND 1
¶2 Boyer appeals his convictions resulting from an
investigation and prosecution that together spanned more than
three years. In early 2013, Boyer’s ex-wife (the ex-wife) contacted
the Utah Division of Child and Family Services (DCFS) and
reported that, years earlier when she and Boyer were still
married, Boyer had sexually abused their son’s now fourteen-
year-old friend (the victim). In response to this report, a
detective from Unified Police Department (the detective)
interviewed the victim at the Children’s Justice Center (the CJC).
The ex-wife drove the victim to the CJC, and the victim provided
the detective with a written account of Boyer’s abuse, which the
victim had prepared prior to the interview at the suggestion of
the ex-wife, who expressed concern that the victim would
struggle to talk about the abuse.
¶3 During the interview, the victim disclosed to the detective
that Boyer had begun abusing her when she was seven years old
and that the most recent incident of abuse occurred when she
was nine. Each incident occurred at Boyer’s home when the
victim was visiting Boyer’s son. The victim described at least
seven separate incidents of sexual abuse in graphic detail.
Because the details of Boyer’s crimes are not relevant to the
issues on appeal, we do not repeat them here.
¶4 The State subsequently charged Boyer with four counts of
aggravated sexual abuse of a child, four counts of rape of a child,
and two counts of sodomy upon a child. The victim testified at a
preliminary hearing in May 2013, and Boyer was bound over on
all charges except one count of rape of a child.
1. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in a light most favorable to that verdict
and recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2,
114 P.3d 551 (cleaned up).
20170423-CA 2 2020 UT App 23State v. Boyer
¶5 Before Boyer’s first trial, trial counsel made numerous
pretrial motions, including a motion opposing the State’s request
to photograph Boyer’s genitals, two motions to admit evidence
of the victim’s prior allegations of sexual abuse pursuant to rule
412 of the Utah Rules of Evidence, a motion to produce the
victim’s medical records from 2005 to 2009, a motion to exclude
the State’s expert testimony, and a motion to continue to allow
more time to investigate rule 412 evidence and the State’s expert.
Trial counsel also negotiated a stipulation with the State
allowing for the in camera review of the victim’s medical and
mental health records. After the in camera review, the district
court determined that the records contained no exculpatory
material and shredded the documents.
¶6 The case proceeded to trial in May 2016. The State
presented the testimony of the victim’s aunt—her legal guardian
at the time of trial—as well as the testimony of the victim. The
victim testified to the details of each of the offenses and
described her relationship with Boyer’s family and the
difficulties she faced since disclosing the abuse. During direct
examination by the State, the victim testified that she decided to
tell the ex-wife about Boyer’s abuse because she overheard a
conversation about Boyer and a “lady” that made her suspect
that she “wasn’t the only one.” After the victim’s direct
examination, trial counsel asked for a recess and moved for a
mistrial because the victim’s statement constituted inadmissible
and prejudicial evidence that could lead the jury to infer that
Boyer had committed similar crimes against other victims. The
district court granted Boyer’s motion and declared a mistrial.
¶7 The second trial took place a short time later. The victim
again testified about the details of Boyer’s abuse and her
struggles since. The State admitted photos of Boyer’s genitals,
and during cross-examination, trial counsel questioned the
victim about her claim to investigators that Boyer had one or two
moles near his penis. Trial counsel also questioned the victim
about the ex-wife’s suggestion that she write down the abuse
20170423-CA 3 2020 UT App 23State v. Boyer
allegations before her CJC interview and the ex-wife’s influence
in the victim’s life. Among other things, the victim admitted on
cross-examination that she had believed that she had genital
herpes because the ex-wife told the victim that Boyer had genital
herpes and told her about the symptoms.
¶8 The ex-wife testified that the victim repeatedly told her
that she had something to tell her before the victim ultimately
disclosed Boyer’s abuse. Although the ex-wife did not initially
believe the victim, she eventually encouraged the victim to speak
with the detective. The ex-wife explained that she suggested that
the victim write down the allegations before her CJC interview
because the victim had difficulty telling her story. The ex-wife
also admitted that she told the victim that Boyer had genital
herpes.
¶9 During direct examination, the ex-wife testified that the
victim disclosed that one of the incidents of abuse occurred on
blue-and-white-striped sheets. Although she initially doubted
the veracity of the victim’s allegations, the ex-wife later
discovered that she and Boyer did have blue-and-white-striped
sheets. She testified that upon her discovery, “I was floored. I
was—it was just those things that just happen that made me
more aware that she was telling the truth.” Trial counsel
objected to this statement, and the district court sustained the
objection and struck the statement from the record. During
cross-examination, trial counsel questioned the ex-wife about the
sheets, her suggestion that the victim write down the allegations
against Boyer, and her account of finding the victim crying on
the floor of her bathroom during the time period of the abuse.
After the ex-wife completed her testimony, trial counsel moved
for a mistrial on the basis of her bolstering statement, which the
court had stricken. The court denied the motion for a mistrial,
determining that the statement was harmless, but offered to
instruct the jury that it alone could determine the credibility of a
witness. Trial counsel declined the instruction for fear of
drawing further attention to the statement.
20170423-CA 4 2020 UT App 23State v. Boyer
¶10 Following the denial of the motion for a mistrial, the State
presented expert testimony from a psychiatrist specializing in
sexual abuse cases. The State concluded its case with testimony
from the nurse who conducted a physical examination of the
victim following her CJC interview. The nurse testified that the
victim’s exam was normal, but explained that ninety-five percent
of the exams she conducts are normal.
¶11 After the State rested, the defense called the detective as
its first witness. The detective testified about the extensive
professional training he underwent to work with child victims
and the nationally recognized protocol for interviewing
suspected child sexual abuse victims. After the detective
testified, the defense read into evidence a stipulation that the
victim had informed the police “about a separate incident” in
which another friend’s father touched her breasts. The
stipulation indicated “that [the incident] only happened on one
occasion,” that the friend’s father has denied the allegation, and
that “no charges have been filed against” the friend’s father.
¶12 Boyer testified last and denied the victim’s allegations. He
testified that his divorce from the ex-wife had been acrimonious
and that, shortly before the victim’s accusations, one of his sons
sent him a photograph of the ex-wife apparently passed out on
the kitchen floor after taking a sleeping pill and possibly
consuming alcohol. Boyer believed that the victim’s allegations
resulted from the ex-wife’s desire for retribution. To rebut this
evidence, the State recalled the ex-wife, who testified that, while
she did force Boyer out of their home, occasionally drank, and
took Ambien, her divorce from Boyer was otherwise amicable
and there were no custody disputes.
¶13 In closing arguments, the defense argued that the ex-wife
had indoctrinated the victim to make false allegations against
Boyer so that the ex-wife could keep Boyer from seeing their
sons. The defense further argued that the victim did not know
that Boyer had genital herpes until the ex-wife told her and
20170423-CA 5 2020 UT App 23State v. Boyer
never sought medical treatment for her supposed herpes
outbreaks, did not mention the moles near Boyer’s penis in her
initial interviews or until much later in the investigation when
she described Boyer’s moles inaccurately, showed no physical
signs of abuse, and accused another friend’s father of similar
conduct yet no charges were filed. The defense also pointed out
that the State’s expert had opined that consistency and rich
detail in reports could be an indication of indoctrination.
¶14 After closing arguments, the jury found Boyer guilty on
all counts. Boyer was later sentenced to two consecutive terms of
fifteen years to life in prison for sodomy upon a child and for
aggravated sexual abuse of a child, to run concurrently with the
lesser sentences imposed for the remaining counts.
¶15 After sentencing, trial counsel withdrew and appellate
counsel appeared on Boyer’s behalf. 2 Appellate counsel filed a
motion for a new trial, arguing ineffective assistance of trial
counsel, evidentiary errors, and prosecutorial misconduct.
Appellate counsel also moved to disqualify the trial judge from
hearing the motion for a new trial, arguing that the trial judge
was actually and apparently biased. In addition, appellate
counsel filed a motion to subpoena all of the victim’s medical
and mental health records from 2005 forward and a motion to
reconstruct the record with the victim’s medical and mental
health records that the district court previously reviewed in
camera and subsequently destroyed.
¶16 The district court initially granted the motions to
subpoena the victim’s medical records and to reconstruct the
record but reconsidered its ruling at the urging of the victim’s
counsel and the State. The motion to disqualify was certified to
the presiding judge, who denied the motion. The district court
2. The same attorney who represents Boyer on appeal also
represented Boyer post-sentencing in the district court.
20170423-CA 6 2020 UT App 23State v. Boyer
then considered briefing and argument on the motion for a new
trial and denied that motion as well.
¶17 Boyer appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 On appeal, Boyer challenges three rulings. First, Boyer
argues that the district court erred in denying his motion for a
new trial on various grounds. “When reviewing a trial court’s
denial of a motion for a new trial, we will not reverse absent a
clear abuse of discretion by the trial court.” State v. Pinder, 2005
UT 15, ¶ 20, 114 P.3d 551 (cleaned up). “At the same time,
however, we review the legal standards applied by the trial
court in denying such a motion for correctness” and “the trial
court’s factual findings for clear error.” Id. Accordingly, a trial
court abuses its discretion if its decision is “premised on flawed
legal conclusions,” Archuleta v. Galetka, 2011 UT 73, ¶ 152, 267
P.3d 232 (cleaned up), “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.
Arguelles, 2003 UT 1, ¶ 101, 63 P.3d 731 (cleaned up).
¶19 Second, Boyer argues that the district court denied his
constitutional right to a fair trial in denying his motion to
disqualify because the trial judge was actually or apparently
biased. Whether the district court erred in declining to disqualify
the trial judge on the basis of bias is a question of law, which we
review for correctness. State v. Alonzo, 973 P.2d 975, 979 (Utah
1998).
¶20 Finally, Boyer argues that the district court erred in
refusing to reconstruct the record with the victim’s subpoenaed
medical and mental health records. Boyer makes this argument
under article I, section 12 of the Utah Constitution. Issues of
20170423-CA 7 2020 UT App 23State v. Boyer
constitutional interpretation are also questions of law that we
review for correctness, “granting no deference to the district
court.” Sandoval v. State, 2019 UT 13, ¶ 7, 441 P.3d 748.
ANALYSIS
I. Motion for a New Trial
¶21 Boyer contends that the district court erred in denying his
motion for a new trial because he was prejudiced by the
cumulative effect of nearly two dozen instances of ineffective
assistance of counsel, prosecutorial misconduct, and district
court error. Under the Utah Rules of Criminal Procedure, a
district court “may, upon motion of a party or upon its own
initiative, grant a new trial in the interest of justice if there is any
error or impropriety which had a substantial adverse effect upon
the rights of a party.” Utah R. Crim. P. 24(a). “Before reversing a
verdict or sentence under the cumulative error doctrine,” a court
must make three determinations: “that (1) an error occurred,
(2) the error, standing alone, has a conceivable potential for
harm, and (3) the cumulative effect of all the potentially harmful
errors undermines its confidence in the outcome.” State v.
Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038. “The
doctrine will only be applied to errors that are ‘substantial’
enough to accumulate.” Id. ¶ 40.
¶22 Here, Boyer argues that three types of error accumulate to
warrant a reversal and a new trial—ineffective assistance of
counsel, prosecutorial misconduct, and erroneous evidentiary
and procedural rulings. These issues tend to overlap and involve
common facts. Although the relationship between Boyer’s
scattershot claims is not always clear, we have attempted to
group issues together as they relate to different parts of the trial.
We first address the issues related to other allegations of sexual
abuse under rule 412, the admission of the psychiatrist’s expert
testimony, and the production of the victim’s medical and
20170423-CA 8 2020 UT App 23State v. Boyer
mental health records. In so doing, we recite additional facts as
necessary to provide context. We then address the remaining
ineffective assistance claims as a group and conclude that they
do not merit further discussion.
A. Rule 412 Evidence
¶23 Around the same time the victim disclosed Boyer’s abuse
to the ex-wife and the detective, the victim also reported being
sexually abused by a cousin (the cousin incident). Specifically,
the victim reported that she and her cousin went for a bicycle
ride when she was roughly five years old. The two stopped at a
trailer, and the cousin pulled down the victim’s pants and
rubbed her vagina with his fingers. The State disclosed these
allegations to the defense in 2013.
¶24 A short time after her first CJC interview with the
detective, the victim also disclosed another incident in which
another friend’s father touched her breasts over her bra one time
during a sleepover at his house (the sleepover incident). After
disclosing the sleepover incident to the detective in an interview,
the victim provided a letter to a district attorney’s office
investigator who passed it on to the detective. In the letter, the
victim described the sleepover incident as well as an incident
where the friend’s father invited the victim into his office to help
organize papers. The victim alleged that while in the office, the
friend’s father rubbed the victim’s leg, put the victim on his lap,
made the victim lie down, rubbed the front of her body, and put
his hands down her pants (the office incident). The detective
documented both incidents involving the friend’s father in his
reports and referenced the letter in one of the reports. The State
provided trial counsel with both reports before trial but did not
provide a copy of the letter.
¶25 Trial counsel filed motions to admit evidence of both the
cousin incident and the sleepover incident under rule 412 of the
Utah Rules of Evidence. The first motion pertained to the cousin
20170423-CA 9 2020 UT App 23State v. Boyer
incident. Trial counsel argued that the district court should allow
evidence of the victim’s allegations to be admitted at trial
because the victim alleged she was abused by cousin in a
“similar fashion” as Boyer was alleged to have abused the
victim, “family members minimized the abuse and were not
cooperative with law enforcement in the prosecution of the
relative,” and the allegations were admissible under rule 412 if
they were false and under rule 412(b) “to negate the sexual
innocence inference.” The district court denied the motion. Boyer
made similar arguments in his motion to admit evidence of the
sleepover incident. But at the hearing on the motion, trial
counsel and the State agreed that the jury would be informed of
the victim’s allegations about the sleepover incident by written
stipulation, 3 leaving the parties free to argue about how to
interpret such evidence. At trial, the defense read the stipulation
into evidence, informing the jury that the victim alleged that the
father of another friend had touched her breasts, that it
happened only once, and that the State declined to file charges.
¶26 During closing argument, trial counsel argued that the
stipulated evidence of the victim’s other allegation showed that
the victim was capable of fabricating allegations of sexual abuse.
The prosecutor responded in rebuttal by contesting the defense’s
3. It is not clear from the record why defense counsel did not
seek to admit evidence of the office incident. In direct conflict
with some of his other arguments, Boyer argues that defense
counsel erroneously believed that the office incident occurred
not between the victim and her friend’s father but between the
victim and her friend because the detective erroneously stated as
much in his report. Boyer also argues that, if trial counsel had
investigated the letter, he would have realized that the office
incident involved the friend’s father. However, in an unsigned
affidavit submitted with Boyer’s motion for a new trial, trial
counsel stated that he understood that the office incident
involved the friend’s father and not the friend.
20170423-CA 10 2020 UT App 23State v. Boyer
characterization of the victim’s allegation pertaining to the
sleepover incident:
This is [a] perfect example of why logic and the
application of logic is [so] important in this case as
you go through your deliberations, because if the
incident occurred—if it really did happen the way
[the victim] said to [the detective], even though it
was determined, oh, well, there’s not enough
evidence to charge. There’s no [ex-wife] to give us
those—
At that point, trial counsel objected, arguing that the State had
broken the stipulation by attempting to talk about the ex-wife’s
lack of involvement in the other allegation. The district court
sustained the objection.
¶27 On appeal, Boyer makes several arguments pertaining to
the victim’s pretrial allegations of other incidents of sexual abuse
perpetrated by individuals other than Boyer. He argues that the
State engaged in prosecutorial misconduct in mischaracterizing
the office and sleepover incidents at the hearing on the rule 412
motion and refusing to turn over the letter. He also argues that
trial counsel provided ineffective assistance by failing to
investigate the office incident, failing to object to the prosecutor’s
representations at the rule 412 hearing, and stipulating only to
the admission of the sleepover incident.
¶28 Each of Boyer’s claims relating to the victim’s other
allegations assumes that evidence of those allegations would
have been admissible as an exception to rule 412. 4 If this
4. Boyer also argues that the State engaged in prosecutorial
misconduct during rebuttal closing argument when the
prosecutor appeared to begin to disclose facts outside the
stipulation in stating, “There’s no [ex-wife] to give us those—.”
(continued…)
20170423-CA 11 2020 UT App 23State v. Boyer
evidence was not admissible, the prosecution’s alleged failure to
disclose and defense counsel’s alleged failure to investigate and
use this evidence more effectively could not have impacted the
trial’s outcome. Thus, we address the admissibility of the
victim’s allegations as a threshold matter and conclude that
because the allegations were not admissible, any alleged
missteps with respect to this evidence did not prejudice Boyer.
¶29 Rule 412 “serves to bar all evidence of [an] alleged
victim’s other sexual behavior, ‘whether offered as substantive
evidence or for impeachment,’” State v. Clark, 2009 UT App 252,
¶ 14, 219 P.3d 631 (quoting Utah R. Evid. 412 advisory
committee’s note), including “any truthful evidence that
involves actual physical conduct or that implies sexual contact,”
id. ¶ 20 (cleaned up), and “all evidence that may have a sexual
connotation for the fact finder,” State v. Tarrats, 2005 UT 50, ¶ 22,
122 P.3d 581 (cleaned up). However, there are exceptions to rule
412’s bar, one of which Boyer argues applies here.
¶30 Rule 412(b)(3) allows for the admission of evidence of an
alleged victim’s other sexual behavior if the exclusion of such
(…continued)
Because our supreme court has recognized that “prosecutorial
misconduct is not ‘a standalone basis for independent judicial
review,’” State v. Reid, 2018 UT App 146, ¶ 40, 427 P.3d 1261(quoting State v. Hummel, 2017 UT 19, ¶ 111, 393 P.3d 314), we do
not directly review the prosecutor’s actions, but that of the
district court, id. Here, the prosecutor’s potentially problematic
statement was cut short by trial counsel’s objection that the
prosecutor had “broken his own stipulation.” The district court
sustained the objection and, out of the presence of the jury, the
prosecutor agreed to limit his argument to the terms of the
stipulation. Boyer has not challenged the district court’s ruling
or argued how the district court should have responded
differently to the prosecutor’s statements.
20170423-CA 12 2020 UT App 23State v. Boyer
evidence would violate the defendant’s “constitutional rights” to
a fair trial. See State v. Thornton, 2017 UT 9, ¶ 74, 391 P.3d 1016(cleaned up). Among those rights is the defendant’s right to
present a meaningful defense through “reasonable
cross-examination.” State v. Marks, 2011 UT App 262, ¶ 13, 262
P.3d 13 (cleaned up). But that right is “not without limitation”
and may “bow to accommodate other legitimate interests in the
criminal process,” such as concerns about “harassment,
prejudice, confusion of the issues, the witness’s safety, or
interrogation that is repetitive or only marginally relevant.”
Clark, 2009 UT App 252, ¶ 16 (cleaned up). Therefore, to admit
evidence of an alleged victim’s other sexual behavior, the
defendant must meet the “high bar” of demonstrating that he
has a “weighty interest that is significantly undermined by” the
exclusion of such evidence and that exclusion under rule 412 is
“arbitrary or disproportionate to the purposes [the rule] is
designed to serve.” Thornton, 2017 UT 9, ¶ 77 (cleaned up). In
other words, the defendant must show that “the evidence in
question is essential to the presentation of [his] defense.” Id.
¶ 78.
¶31 Apart from this exception, our supreme court has also
held that rule 412 poses no bar to a similar type of evidence—an
alleged victim’s prior false allegations of sexual abuse.
“Evidence of false statements of unrelated sexual assaults are not
excluded by the rape shield rule because they are not evidence of
sexual conduct per se.” Tarrats, 2005 UT 50, ¶ 24 (cleaned up).
However, because “a truthful prior allegation of rape carries no
value whatsoever in the trial process, and its admission into the
evidence bears a high potential for humiliating the accuser,
discouraging victims from reporting sexual crimes against them,
and introducing irrelevant and collateral issues that may confuse
or distract the jury,” “any potential probative value . . . prior
allegations of [sexual abuse] bear depends upon them being
false.” Id. “Thus, in order to ensure that such improper evidence
is not admitted, a defendant who wishes to impeach his
accuser’s credibility with the accuser’s prior allegation of [sexual
20170423-CA 13 2020 UT App 23State v. Boyer
abuse] must first demonstrate by a preponderance of the
evidence that the allegation was false.” Id. ¶ 25. And even if the
defendant is able to make this threshold showing, “[t]rial judges
[retain] wide discretion in limiting the scope and extent of
cross-examination and the admissibility of evidence to that end.”
Id.
¶32 Boyer contends that the office incident and the cousin
incident are admissible as evidence necessary to the presentation
of Boyer’s defense, see Utah R. Evid. 412(b)(3), and that the office
incident is admissible as a false allegation of sexual abuse. 5 But
we conclude that Boyer has not shown that evidence of either the
office or cousin incidents were admissible under either theory.
¶33 First, it is apparent from the record that the defense’s
primary theory was that the ex-wife had indoctrinated the victim
to fabricate the allegations against Boyer and that the ex-wife
was motivated to do so out of bitterness after her divorce from
Boyer and the possibility that she might lose custody of her
children. Boyer presented evidence at trial to support this
theory. For example, trial counsel elicited testimony from the
victim and the ex-wife that they had a very close relationship.
The victim also testified that the ex-wife told her Boyer suffered
from genital herpes and that is why she reported to the nurse
practitioner that she suffered from herpes outbreaks. The ex-wife
also testified that she ended her marriage to Boyer abruptly,
rather than amicably, when she removed his belongings and
locked him out of their family home. She also admitted that she
had a drinking problem, for which she in part blamed Boyer.
Boyer testified that one of his sons provided him with a
5. By extension, Boyer argues that he was prejudiced by the
prosecutor’s misrepresentation of the office incident at the rule
412 hearing and that trial counsel was deficient for failing to
uncover that the office incident involved the other friend’s
father.
20170423-CA 14 2020 UT App 23State v. Boyer
photograph of the ex-wife apparently passed out in the middle
of the kitchen floor after taking a sleeping pill and possibly
consuming alcohol. In addition, through the stipulation, trial
counsel was able to argue that the victim was capable of
fabricating allegations because she may have done so regarding
the uncharged sleepover incident.
¶34 In light of the defense theory and supporting evidence
that Boyer argued to the jury at trial, Boyer cannot meet the
“high bar” to show that evidence of the victim’s other allegations
was essential to the presentation of his defense. See Thornton,
2017 UT 9, ¶ 77. Although Boyer argues that the State did not
turn over the letter regarding the office incident to hide its “lack
of confidence” in the victim and that evidence of that allegation
in combination with the cousin incident evidence could have
been used to challenge the psychiatrist’s expert testimony, Boyer
has not shown how accomplishing either of those goals was
necessary to his defense. Boyer’s primary theory was that the
victim fabricated the allegations at the behest of the ex-wife, and
he was allowed to present evidence to support his argument that
the victim was inconsistent and dishonest and that the ex-wife
had motive to indoctrinate the victim. Accordingly, the district
court acted within its discretion in ruling that Boyer’s
“arguments about the evidence [of other allegations] are
speculative” and that he “failed to show that evidence would be
admissible under [an] exception to rule 412.”
¶35 Second, Boyer cannot establish by a preponderance of the
evidence that the victim’s allegations regarding either the cousin
incident or the office incident were false. See Clark, 2009 UT App
252, ¶ 22. To carry his burden, Boyer must show that it is “more
likely than not” that the victim fabricated the other allegations.
See Kilgore Cos. v. Utah County Board of Adjustment, 2019 UT App
20, ¶ 17, 438 P.3d 1025 (cleaned up). But Boyer has not pointed to
any evidence he could have offered to refute the victim’s
accounts, particularly given that the other friend’s father was
unwilling to cooperate with Boyer’s defense and the victim’s
20170423-CA 15 2020 UT App 23State v. Boyer
cousin died before Boyer’s trial. 6 As a result, Boyer could not
have carried his burden to prove that the victim’s allegations
were false.
¶36 Because Boyer has failed to show that evidence of the
cousin incident and the office incident are admissible, he cannot
show that trial counsel was ineffective for failing to investigate
the letter and in stipulating to the introduction of only the
sleepover incident or that the State withheld material
exculpatory evidence in failing to turn over the letter. Trial
counsel was in possession of the police reports detailing the
office incident and could have reasonably believed that the
information in the stipulation was more than what the district
court would have otherwise admitted and that the other
allegations were inadmissible and unnecessary to the defense.
See Strickland v. Washington, 466 U.S. 668, 690–91 (1984) (stating
that “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable” but that even “strategic choices made after less
than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation”). Similarly, even assuming failure
to turn over the victim’s letter detailing the office incident
constitutes error, there is no reasonable likelihood that such an
6. The stipulation concerned the sleepover incident, not the office
incident. But even assuming that Boyer could have secured a
similar stipulation with respect to the office incident, the mere
fact that no charges were filed would not establish, by a
preponderance of the evidence, that the victim’s allegations
regarding the office incident were false. See Hughes v. Raines, 641
F.2d 790, 792 (9th Cir. 1981) (holding that a prosecutor’s decision
not to press charges does not establish that a prior accusation of
sexual assault was false because that decision “could mean no
more than that [the prosecutor] did not have sufficient evidence
to obtain a conviction”).
20170423-CA 16 2020 UT App 23State v. Boyer
error had any effect on the outcome of the proceedings because
the letter itself was inadmissible. See Walker v. State, 624 P.2d 687,
691 (Utah 1981) (reversing for the State’s failure to disclose
evidence favorable to the defense where there “exist[ed] a
reasonable likelihood the false impression fostered by the
prosecutor could have affected the judgment of the jury”).
Accordingly, all of Boyer’s claims relating to the evidence of the
victim’s other allegations of sexual abuse fail.
B. The Psychiatrist’s Expert Testimony
¶37 In November 2015, before Boyer’s first trial, the State filed
notice of an expert who would testify about “delayed disclosure
in child sexual abuse cases and risks associated with being a
victim of child sexual abuse.” In response, trial counsel argued
that the notice was insufficient and requested a continuance or,
alternatively, that the psychiatrist’s testimony be excluded. The
district court granted trial counsel’s motion to continue in order
to give the defense time to investigate the psychiatrist’s
proposed testimony.
¶38 At trial the following year, the State elicited testimony
from the psychiatrist that he was board certified in forensic
psychiatry and child psychiatry since 1998, had published
scholarly work pertaining to child trauma, was responsible for
assessing and treating child victims of abuse for thirteen years,
and had focused his practice on child abuse for thirty-six years.
After presenting the psychiatrist’s credentials, the prosecutor
then began examining the psychiatrist “based on [the
psychiatrist’s] body of experience and training and knowledge”
he had accumulated over his decades of practice. When the
prosecutor asked whether, based on the psychiatrist’s expertise,
immediate disclosure or delayed disclosure of child sexual abuse
was more common, trial counsel objected for lack of foundation.
The district court allowed trial counsel to conduct voir dire, and
after questioning the witness, trial counsel argued that the
psychiatrist’s testimony was based on data to which the defense
20170423-CA 17 2020 UT App 23State v. Boyer
had not been given notice. Trial counsel conducted additional
voir dire, and the psychiatrist testified that his testimony would
primarily rely on his “history of work with victims and
knowledge of child sexual abuse.” The district court ruled that
the psychiatrist’s testimony did not rely on “specialized data,” to
which Boyer would be entitled to access pursuant to Utah Code
section 77-17-13(2), but rather on the psychiatrist’s thirty-year
practice. Nevertheless, the court instructed the psychiatrist not to
“specifically cite a study or anything else like that” in giving his
testimony.
¶39 During direct examination, the psychiatrist testified that
children who suffer sexual abuse have an “increased lifetime
risk” of “a variety of conditions” including suicidality, substance
abuse, and “later sexual problems,” such as misperceiving a
person’s intentions from an innocent show of affection in the
future. The psychiatrist also testified that delayed disclosure was
common among child victims. The psychiatrist acknowledged
that he had not “been briefed on the underlying facts and
allegations related to [the State’s] case,” had no knowledge of the
victim’s mental health or medical history, and had never met
with or treated the victim as a patient.
¶40 On appeal, Boyer argues that the psychiatrist’s testimony
lacked foundation and improperly bolstered the victim’s
allegations. As a result, Boyer argues, the district court erred in
admitting the psychiatrist’s testimony and trial counsel was
ineffective for failing to file a motion in limine to exclude the
testimony. 7 Because Boyer’s claims of district court error and
7. In a single sentence, Boyer also appears to argue that the
district court erred in admitting the psychiatrist’s testimony
because it was unhelpful to the jury. See Utah R. Evid. 702(a). To
the extent that Boyer has even raised this as an issue for our
review, it is inadequately briefed and we decline to reach it. See
State v. Green, 2005 UT 9, ¶ 11, 108 P.3d 710 (explaining that an
(continued…)
20170423-CA 18 2020 UT App 23State v. Boyer
ineffective assistance of counsel both depend upon whether the
psychiatrist’s testimony actually lacked foundation or
impermissibly bolstered the victim’s allegations against Boyer,
we address those questions as a threshold matter.
¶41 A district court has discretion to admit or exclude expert
testimony, and we will not conclude that a district court has
erred in admitting such testimony absent an abuse of that
discretion. State v. Maestas, 2012 UT 46, ¶ 154, 299 P.3d 892. A
district court abuses its discretion when it admits evidence that
does not meet a threshold showing of reliability. Id. ¶ 121. Under
rule 702(a) of the Utah Rules of Evidence, a witness “who is
qualified as an expert by knowledge, skill experience, training,
or education may testify in the form of an opinion or otherwise”
if the expert has “scientific, technical, or other specialized
knowledge” that will help the jury “understand the evidence” or
“determine a fact in issue.” Rule 702(b) also requires the party
offering the expert testimony to make a “threshold showing that
the principles or methods that are underlying in the testimony
(1) are reliable, (2) are based upon sufficient facts or data, and (3)
have been reliably applied to the facts.” “Under this rule, courts
should generally exclude testimony if the testimony is within the
knowledge or experience of the average individual” and must
“always take care to ensure that the testimony does not
transgress into the area reserved for the jury—including
credibility assessments.” State v. Martin, 2017 UT 63, ¶ 29, 423
P.3d 1254 (cleaned up).
¶42 Boyer first contends that the State did not make the
threshold showing of reliability. In support of this contention,
Boyer cites a law review article that suggests that one study
(…continued)
appellant’s brief is inadequate when it provides only “one or
two sentences stating his argument generally and then broadly
conclude[s] that he [is] entitled to relief” (cleaned up)).
20170423-CA 19 2020 UT App 23State v. Boyer
listed in the psychiatrist’s curriculum vitae cannot be relied
upon to discern common traits among child sexual abuse
victims. But even accepting the premise of that law review
article as true, Boyer ignores that the psychiatrist did not
testify based on the scholarly work listed in his curriculum
vitae. In fact, the district court prohibited the psychiatrist
from doing so in its instruction after voir dire. Rather, the
psychiatrist testified based on his thirty years of experience
working with child abuse victims, for which the State laid ample
foundation, and Boyer has not challenged the psychiatrist’s
training and experience as a child abuse psychiatrist. Boyer has
not made any effort to explain how the psychiatrist’s extensive
training and practical experience were inadequate to support his
testimony of “specialized knowledge” about the behaviors and
symptoms consistent with child sexual abuse victims.
Accordingly, Boyer has not demonstrated that the district court
abused its discretion in making its threshold reliability
determination, see State v. Roberts, 2015 UT 24, ¶ 56, 345 P.3d
1226 (rejecting challenge to the admission of expert testimony
where defendant pointed to no record evidence or supporting
authority to refute the court’s reliability determination), or that
trial counsel performed deficiently in failing to file a motion
objecting to the psychiatrist’s testimony based on lack of
foundation.
¶43 Boyer also contends that trial counsel performed
deficiently in failing to object to the admission of the
psychiatrist’s testimony as impermissibly bolstering the victim’s
allegations or, alternatively, if the objection was preserved, that
the district court erred in allowing such testimony. Specifically,
Boyer contends that the psychiatrist’s “behavioral theory invited
jurors to infer that [the victim’s] behavioral history
circumstantially proved her claims true.”
¶44 “While experts may use their expertise to help the
factfinder understand issues at trial, experts cannot testify that a
particular witness has or has not told the truth.” State v. Burnett,
20170423-CA 20 2020 UT App 23State v. Boyer
2018 UT App 80, ¶ 25, 427 P.3d 288. Rule 608(a) of the Utah
Rules of Evidence “prohibits any testimony as to a witness’s
truthfulness on a particular occasion.” State v. Rimmasch, 775
P.2d 388, 391 (Utah 1989), superseded in part by rule as stated in
State v. Maestas, 2012 UT 46, 299 P.3d 892. Applying rule 608(a),
our supreme court has held that “an expert may not express an
opinion as to a child’s truthfulness with respect to statements of
child sex abuse.” State v. Ramsey, 782 P.2d 480, 485 (Utah 1989).
Expert testimony that a victim’s behavior matches a
psychological profile for victims of sexual abuse is likewise
impermissible. Rimmasch, 775 P.2d at 402 n.13.
¶45 On the other hand, evidence of “the manifestation of
certain behavioral symptoms may have some probative value as
circumstantial evidence,” and “[e]xpert testimony that such
symptoms are consistent with sexual abuse, subject to
appropriate limitations and instructions to the jury, may enable
the jury to assess the probative relevance of the evidence in light
of all other evidence.” State v. Kallin, 877 P.2d 138, 141 (Utah
1994). Such testimony “does not amount to inadmissible
profiling evidence, because [it] does not prove directly the
ultimate legal conclusion that a particular victim has been
abused” and therefore does not improperly invade “the province
of the jury as factfinder.” Burnett, 2018 UT App 80, ¶ 27 (cleaned
up).
¶46 Here, the psychiatrist’s testimony does not constitute
inadmissible profiling evidence or improper bolstering of
the victim’s credibility. The psychiatrist testified about “mental
health problems, physical problems, [and] behavioral problems”
that are common among child sexual abuse victims. He
also explained that such “problems” among victims can
occur “down the road” from the abuse and that there are a
“large number” of possible psychological effects of sexual
abuse for child victims, including that victims of child
sexual abuse can be “more vulnerable to misperceiving”
innocent shows of affection, commonly delay disclosing the
20170423-CA 21 2020 UT App 23State v. Boyer
abuse, and can tend to communicate “some level of
inconsistency” in their disclosures depending on their
circumstances.
¶47 Importantly, the psychiatrist did not testify about how
“to discern truthful sexual abuse allegations from false ones”
and did not testify about how often children make false
allegations. See id. ¶ 36 (holding that the psychiatrist expert’s
testimony about how often and under what circumstances
children fabricate sexual abuse allegations was impermissible
bolstering because the “prosecution was clearly inviting the
jury to draw inferences about [the victim’s] credibility
based upon [the expert’s] past experience” (cleaned up)). The
psychiatrist also did not speak “in terms of probabilities” or
“offer direct opinions on the truthfulness” of the victim’s
allegations. See State v. King, 2010 UT App 396, ¶ 45, 248 P.3d 984(cleaned up) (holding that testimony from a police officer and
a social worker that they were not “inclined to pursue all
claims that came before them” was not impermissible
bolstering). And while the psychiatrist did testify that
delayed and inconsistent disclosure was common among
child sexual abuse victims in his professional practice, he did
not “seek to connect [his] testimony about the general
behavioral characteristics of child victims of sexual abuse to”
the victim’s specific conduct. See Martin, 2017 UT 63, ¶¶ 10, 33
(holding that expert testimony from a CJC forensic
interviewer “regarding common behaviors” of child sexual
abuse victims and why victims “often make incomplete
disclosures and disclose additional details and facts
pertaining to their sexual abuse over time” was not
impermissible bolstering). Indeed, the psychiatrist did not
address or opine, even hypothetically, whether the evidence
presented regarding the victim and any physical or mental
problems she may have suffered was indicative of abuse and
confirmed that he had never met the victim and was not
aware of any facts pertaining to her life or the allegations against
Boyer.
20170423-CA 22 2020 UT App 23State v. Boyer
¶48 Ultimately, the psychiatrist’s testimony here is
distinguishable from the type of bolstering testimony our courts
have held to be impermissible. See generally, e.g., State v. Rammel,
721 P.2d 498 (Utah 1986); Burnett, 2018 UT App 80; State v. Iorg,
801 P.2d 938 (Utah Ct. App. 1990). As a result, trial counsel did
not render deficient performance by not raising a bolstering
objection, and the district court did not plainly err by not
excluding the testimony sua sponte.
C. The Victim’s Medical and Mental Health Records
¶49 In May 2015, the State learned from the victim’s aunt
that the victim had been admitted to the hospital after
discussing and apparently attempting suicide because “it didn’t
seem like anybody was listening or caring, . . . [and Boyer’s trial]
was just never going to come around and [the victim] was
tired of worrying about it.” According to the victim’s aunt, the
victim had been diagnosed with PTSD and attachment
disorder while she was being treated in the hospital. After
learning of the victim’s hospitalization, the State disclosed the
information it had received to trial counsel. Rather than
litigate the issue, the State and trial counsel stipulated to the
district court’s in camera review of the victim’s hospitalization
records for relevant exculpatory information. The district court
reviewed the records in camera and determined that they
contained no information of exculpatory value. Without
objection from the State and trial counsel, the district court
shredded the records.
¶50 At trial, after hearing testimony from the victim about
how her feelings that she “didn’t want to live any more” were in
some “way connected to the things” the victim testified to
regarding Boyer, trial counsel made another motion to produce
the medical and mental health records the district court
reviewed in camera, arguing that the victim’s testimony revealed
that the records contained exculpatory evidence. The district
20170423-CA 23 2020 UT App 23State v. Boyer
court reiterated that there “was nothing exculpatory in those
records at all” and denied trial counsel’s motion. 8
¶51 After Boyer was convicted, appellate counsel filed
a motion to re-subpoena the records the district court had
already reviewed as well as the last ten years of the victim’s
school counseling records. The district court denied
Boyer’s motion as to all of the victim’s records, specifically
determining that Boyer had “failed to show in post-trial
proceedings that he is entitled to have the [district court]
issue subpoenas” for the victim’s medical and mental health
records.
¶52 On appeal, Boyer argues that his trial counsel provided
ineffective assistance for failing to request subpoenas for
additional medical and mental health records before trial, for
failing to consult with experts regarding the probative value of
the victim’s records, for failing to object to the district court
shredding the victim’s records after in camera review, and for
failing to provide memoranda to guide the court’s in camera
review. 9 He also claims that the district court erred in
8. The parties specifically stipulated that the district court would
review the victim’s records in camera and provide “both parties
with any materials that contain relevant inculpatory or
exculpatory information.” However, under rule 506 of the Utah
Rules of Evidence and our case law, neither Boyer nor the State
was entitled to the production of the privileged information
contained in the records unless the district court found that the
records contained materially exculpatory evidence or the victim
had waived the privilege. See State v. Blake, 2002 UT 113, ¶ 23, 63
P.3d 56.
9. Boyer also argues that trial counsel was ineffective for failing
to request the victim’s school records from every school the
victim had attended for the preceding ten years, all of the
(continued…)
20170423-CA 24 2020 UT App 23State v. Boyer
denying his post-verdict motions to subpoena the victim’s
records.
¶53 Even with the benefit of new counsel and additional
post-verdict investigation, Boyer cannot establish that he was
entitled to an in camera review of the victim’s medical and
mental health records below, let alone that he was entitled to
the production of those records. As a result, the district court
did not err in denying his post-verdict motions and his
trial counsel did not render ineffective assistance by
forgoing further efforts to obtain records to which Boyer was not
entitled.
(…continued)
victim’s DCFS records, and the victim’s cell phone records from
the day and time of the victim’s first CJC interview. He also
argues that the district court erred in denying appellate counsel’s
motion to subpoena those records. The district court summarily
denied Boyer’s post-trial motion for subpoenas, and the State
contends that rule 14(b) of the Utah Rules of Criminal Procedure,
which sets forth the procedure for subpoenaing victim records in
a criminal case, does not entitle defendants to subpoena records
post-trial. See Utah R. Crim. P. 14(b)(3) (stating that a request for
the production of victim records “shall be filed with the court as
soon as practicable, but no later than 28 days before trial, or by
such other time as permitted by the court”). Even assuming that
defendants are entitled to subpoena victim records post-trial,
Boyer has failed to point to any authority or facts in the record to
support his contention that he is entitled to the subpoenas under
Utah and federal law. See id. R. 14(b)(1) (“No subpoena . . .
compelling the production of medical, mental health, school, or
other non-public records pertaining to a victim shall be issued by
or at the request of the defendant unless the court finds . . . that
the defendant is entitled to production of the records . . . under
applicable state and federal law.”).
20170423-CA 25 2020 UT App 23State v. Boyer
¶54 Under rule 506(b) 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.”
“Although this privilege is an important one, the rule provides
exceptions in certain circumstances, one of which [Boyer]
suggests is applicable here.” See State v. Blake, 2002 UT 113, ¶ 18,
63 P.3d 56, 61; see also Utah R. Evid. 506(d)(1)–(3). Specifically,
Boyer argues that the exception contained in rule 506(d)(1)
applies to this case. 10
¶55 Rule 506(d)(1) provides, in relevant part, that no privilege
exists for “communications relevant to an issue of the physical,
mental, or emotional condition of the patient . . . in any
proceeding in which that condition is an element of any claim or
defense.” Utah R. Evid. 506(d)(1)(a). This exception requires the
party seeking production of records to demonstrate: (1) “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,” (2) “the patient’s condition is an element of
any claim or defense” at issue, and (3) “the defendant has shown
with reasonable certainty that the . . . records will contain
10. Boyer also argues that the victim waived the privilege by
testifying at trial about the hospitalization. The victim’s
testimony was limited to describing the “emotional troubles”
and suicidal ideation that led to her hospitalization and
confirming, in response to the prosecutor’s question, that those
problems were “connected to the things” she had testified about
regarding Boyer. Because the victim did not disclose her
privileged communications with her treatment providers, she
did not waive the privilege. See Utah R. Evid. 510(a) (providing,
in part, that a privilege is waived when the person holding the
privilege “voluntarily discloses or consents to the disclosure of
any significant part of the matter or communication”).
20170423-CA 26 2020 UT App 23State v. Boyer
exculpatory evidence to the defense.” State v. J.A.L., 2011 UT 27,
¶ 48, 262 P.3d 1 (cleaned up).
¶56 Boyer argues that the victim’s reported diagnoses of
attachment disorder and PTSD satisfies the requirement that the
victim suffered from “a physical, mental, or emotional
condition.” For purposes of the rule, “[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.”
State v. Worthen, 2009 UT 79, ¶ 21, 222 P.3d 1144. In an attempt to
meet this standard, Boyer relies on the affidavits of two doctors,
whose opinions appellate counsel secured post-trial, who state
that children who suffer from attachment disorder “will do
whatever it takes to obtain their wants and needs including
lying, being aggressive, stealing, or . . . engag[ing] in self-harm.”
Boyer claims that “the attachment disorder diagnosis would
have illuminated [the victim’s] bond with [the ex-wife], or Mom,
as she called her (until she moved in with her aunt and started
calling her Mom), and also suggested that [the victim] may have
been prone to lie.” (Cleaned up). Boyer also suggests that the
victim’s “PTSD, suicidality and depression, medically may have
undermined her cognitive functioning and ability to testify
reliably—and ‘might lead to uncertainty’ regarding her
trustworthiness, satisfying the third prong of [rule] 506(d)(1).”
(Cleaned up).
¶57 For purposes of this appeal, we assume, without deciding,
that the victim’s attachment disorder qualifies as a chronic and
persistent “condition” under the rule and we accept as true the
defense expert’s declarations that such a condition is relevant to
the reliability of the victim’s testimony. But even assuming that,
with the benefit of the additional investigation and briefing, trial
counsel could have established the first two requirements of rule
506(d)(1)(a), Boyer still cannot establish with reasonable
certainty that the sought-after records contain exculpatory
evidence. Reasonable certainty “lies on the more stringent side of
20170423-CA 27 2020 UT App 23State v. Boyer
‘more likely than not.’” Blake, 2002 UT 113, ¶ 20. “This is a
stringent test, necessarily requiring some type of extrinsic
indication that the evidence within the records exists and will, in
fact, be exculpatory.” Id. ¶ 19. “The difficulty in meeting this test
is deliberate and prudent in light of the sensitivity of these types
of records and the worsening of under-reporting problems in the
absence of a strong privilege.” Id.
¶58 Even with the benefit of the additional post-trial
investigation and briefing conducted by appellate counsel, Boyer
has not met this stringent test. Boyer has offered no basis to
conclude that the victim’s school counseling records contain any
information regarding the conditions Boyer claims are relevant
to his defense. As to the 2014 and 2015 hospital records, Boyer
claims that the “aunt’s interview revealing the diagnoses and [a
post-trial expert’s] declaration about what the records would be
expected to contain were extrinsic evidence of what the records
contained.” (Cleaned up). At most, Boyer has established a
reasonable certainty that those records would contain diagnoses
that, according to the defense’s post-trial experts, could have
adversely affected the reliability of the victim’s testimony. But
the State disclosed those diagnoses before trial, and Boyer does
not explain why trial counsel’s failure to secure the victim’s
records prevented him from presenting that defense.
¶59 The only other “extrinsic evidence” Boyer relies on is
the victim’s testimony that “this case was only part of the
reason” she was hospitalized. Based on that testimony, Boyer
speculates that the records “should indicate causes other than
Boyer for [the victim’s] depression, suicidality and PTSD,” such
as “other perpetrators, the victim’s family difficulties, or other
causes for treatment.” (Citations omitted.) Not only is this
argument speculative, it is untethered from the rest of the rule
506(d)(1) analysis. Boyer can arguably satisfy the first two
prongs of the exception only because he has offered some
evidence that the victim’s attachment disorder was a “condition”
that may have a bearing on her ability to testify truthfully. But
20170423-CA 28 2020 UT App 23State v. Boyer
he has not established either that these “other causes” for the
victim’s treatment rise to the level of a condition for purposes of
the rule or that any such condition affected the victim’s
testimony.
¶60 Put simply, Boyer cannot show that he would have been
entitled to in camera review of the victim’s mental health
records even if trial counsel had done all that appellate counsel
has in pursuit of the records. Far from rendering deficient
performance, trial counsel secured a stipulation allowing an in
camera review of the victim’s hospitalization records, which was
more than Boyer was entitled to. Because Boyer had no right to
such a review, we further conclude that the district court
properly denied Boyer’s post-trial motion to subpoena the
records.
D. Remaining Claims of Ineffective Assistance of Counsel
¶61 In addition to the ineffective assistance of counsel claims
addressed above, Boyer has identified several additional
instances in which he claims that his trial counsel rendered
ineffective assistance. Unlike the ineffective assistance claims we
have already addressed, these remaining claims do not turn on
our resolution of separate legal issues. Instead, they turn on the
constitutional standard for demonstrating denial of the
defendant’s Sixth Amendment right to counsel.
¶62 To show that trial counsel provided ineffective assistance,
Boyer has the burden of establishing first that trial “counsel’s
performance was deficient” in that “counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). The purpose of the right
to counsel is “to ensure that criminal defendants receive a fair
trial” and not “to improve the quality of legal representation.”
Id. at 689. As a result, “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689. Because “it
20170423-CA 29 2020 UT App 23State v. Boyer
is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence,” “the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.”
Id. (cleaned up). We emphasize that “there are countless ways to
provide effective assistance in any given case” and that “[e]ven
the best criminal defense attorneys would not defend a
particular client in the same way.” Id.¶63 In this case, Boyer recites a long list of instances where he
believes that trial counsel performed deficiently in investigating
and presenting Boyer’s defense at trial. We “need not analyze
and address in writing each and every argument, issue, or claim
raised and properly before us on appeal.” State v. Jones, 783 P.2d
560, 565 (Utah Ct. App. 1989) (cleaned up). Although we do not
recite each of Boyer’s ineffective assistance claims, Boyer
generally claims that trial counsel performed in an objectively
deficient manner by:
• not retaining an expert to review the victim’s
first CJC interview;
• not retaining an expert to evaluate the nurse
practitioner’s opinion;
• not cross-examining the ex-wife at Boyer’s
second trial about her inconsistent descriptions
of how the victim initially disclosed Boyer’s
abuse;
• not further impeaching the victim with
testimony from Boyer’s first trial;
• not moving to strike all of the ex-wife‘s
testimony after objecting to the ex-wife’s
bolstering statement and the court sustained the
objection;
20170423-CA 30 2020 UT App 23State v. Boyer
• using the photographs of Boyer’s genitals to
argue that the victim’s descriptions were
inaccurate, rather than moving to exclude the
photographs or conduct additional cross-
examination of the detective and the victim;
and
• not cross-examining the victim about her prior
testimony that the ex-wife was always home
during Boyer’s abuse.
¶64 After fully reviewing each of the claims raised on appeal,
we conclude that Boyer has not carried his burden of
demonstrating that he was deprived of effective assistance of
counsel. In support of his claims, Boyer makes little more than
bare assertions that trial counsel’s decisions were objectively
unreasonable and therefore deficient. He has not explained why
trial counsel’s alleged “acts or omissions” could not “have been
the result of reasonable professional judgment,” nor has he
explained how these alleged errors impeded his ability to receive
a fair trial. See Strickland, 466 U.S. at 690. Furthermore, Boyer has
pointed us to no authority that would overcome our
presumption that trial counsel’s investigation of and opposition
to the State’s evidence was reasonable in the context of the
defense’s trial strategy.
¶65 Constitutionally ineffective assistance occurs when
counsel makes errors “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. 687. Simply identifying arguably better
choices that trial counsel could have made does not establish
that trial counsel erred, let alone that those alleged errors were
“so serious” that Boyer was deprived of his constitutional right
to counsel. Just as due process guarantees a fair trial, but not a
perfect one, see Lutwak v. United States, 344 U.S. 604, 619 (1953),
the right to counsel guarantees a competent attorney, not one
whose performance is impervious to critique. An ineffective
20170423-CA 31 2020 UT App 23State v. Boyer
assistance of counsel claim is not an invitation to flyspeck the
record and, with the luxury of time and the benefit of hindsight,
identify ways in which counsel might have been even more
effective. In denying Boyer’s motion for a new trial, the district
court observed that Boyer was “well-represented at trial and
throughout the litigation.” Our review of the record confirms
this assessment. Accordingly, we reject Boyer’s remaining
ineffective assistance of counsel claims.
E. Cumulative Error
¶66 Boyer has not shown any error in his trial proceedings.
Because the cumulative error doctrine does not apply “if
the claims are found on appeal to not constitute error, or the
errors are found to be so minor as to result in no harm,” the
district court did not err in denying Boyer’s motion for a new
trial. See State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (cleaned
up).
II. Motion to Disqualify the Trial Judge
¶67 At sentencing, after hearing from the victim and her aunt,
the trial judge addressed the victim:
You had to do some things that were very, very
unpleasant. You had to undergo maybe one of the
best defense lawyers in the state. You had to
embarrass yourself in front of a large group of
strangers by telling them intimate details that you
shouldn’t have to be forced to share with anyone.
You had to be poked and prodded by doctors that
you had never seen before, and it just kept going
on and on and on.
Any minute you could have said, “You know
what, it’s not worth it. I’m not putting myself out
there anymore,” but you chose not to. I have to tell
20170423-CA 32 2020 UT App 23State v. Boyer
you, I wish we had more people like you, quite
frankly. I wish there were more heroes in this
world, but you’re definitely one of them.
The other thing I’ll tell you is that this person may
have pushed you back a little bit in life in terms of
what’s going on, but he didn’t conquer you, and he
certainly didn’t stomp you out, and you’re going to
come back twice as good now, knowing that this
man will never, ever get out of prison. You’ll never
even have to look backwards. I hope you
understand that, and I hope that gives you some
comfort.
I know there’s no way I can undo the harms that
this man did to you. There’s nothing I can do
today. I wish there were. I—there isn’t. The one
thing I can do, though, is this little piece of the
puzzle here, that is having him out and you having
to never think about him again, that’s all going to
end today, all right? I want you to understand that,
and understand that you have my absolute respect
and admiration for what you did.
¶68 The trial judge also addressed Boyer:
I have to be honest with you, I completely think—I
watched [the victim] testify on two separate
occasions, given the fact that we had to try this case
twice, and I believe every word that she said, as
did the jury. I think everything she said was right
on point. Everything she said had the detail and so
forth that that is not a story that could have been
fed to her, and certainly her life the way that’s
worked out shows that. I believe everything she
told me. . . .
20170423-CA 33 2020 UT App 23State v. Boyer
Part of the problem here is I don’t even think that
you have the character or the guts to even come
forward and admit to what you’ve done to this
poor person, and that’s horribly unfortunate, more
to you than anything. The reality is that she—
you’re not a problem she’s ever going to have to
think about again. Good luck to you, sir.
¶69 Boyer argues that these comments required
disqualification from subsequent post-trial motion hearings
because they demonstrated that the trial judge was actually or
apparently biased. 11 Specifically, Boyer claims that the court’s
statements criticizing Boyer’s character and expressing a belief in
the victim’s testimony, admiration for her bravery, and the hope
that she would take some comfort in the sentence imposed,
11. Boyer also argues that the trial court violated rule 2.10(B) of
the Utah Code of Judicial Conduct, which provides that judges
“shall not, in connection with cases, controversies, or issues that
are likely to come before the court, make pledges, promises, or
commitments that are inconsistent with the impartial
performance of the adjudicative duties of judicial office,” thus
warranting recusal. Specifically, Boyer contends that the judge’s
statements to the victim constituted a “pledge that the victim
would not have to look back or think about Boyer” and made it
impossible for the judge to fairly decide post-trial motions. But
“[s]uch an [argument] incorrectly equates judicial conduct that
would violate a criminal defendant’s constitutional rights with
judicial conduct that might lead to sanctions for a judge.” See
State v. Munguia, 2011 UT 5, ¶ 16, 253 P.3d 1082. “The parameters
of defendants’ constitutional rights to a fair trial are defined by
[rule 29 of the Utah Rules of Criminal Procedure] and relevant
case law, not the Code of Judicial Conduct.” State v. Neeley, 748
P.2d 1091, 1094 (Utah 1988). Thus, we consider the judge’s
comments to the victim only to the extent that they demonstrate
any actual or apparent bias.
20170423-CA 34 2020 UT App 23State v. Boyer
established favoritism toward the victim and antagonism toward
Boyer and thus required disqualification.
¶70 “The parameters of defendants’ constitutional rights to a
fair trial are defined by [rule 29 of the Utah Rules of Criminal
Procedure] and relevant case law . . . .” State v. Neeley, 748 P.2d
1091, 1094 (Utah 1988). Rule 29 dictates the procedure a judge
must follow when confronted with a motion to disqualify: “The
judge against whom the motion and affidavit are directed shall,
without further hearing, enter an order granting the motion or
certifying the motion and affidavit to a reviewing judge.” Utah
R. Crim. P. 29(b)(2)(A). The rule “present[s] the trial judge with a
binary choice: recuse him- or herself, or if he or she questions the
legal sufficiency of the affidavit, certify the matter to another
named judge for a ruling on its legal sufficiency.” State v. Gavette,
2019 UT App 73, ¶ 8, 442 P.3d 1243 (cleaned up); see also Utah R.
Crim. P. 29(b)(2)(A).
¶71 In this case, Boyer filed a motion to disqualify the trial
judge shortly after Boyer’s sentencing hearing. The trial judge
declined to grant the motion, and instead certified it to the
associate presiding judge, who reviewed and ultimately denied
the motion. Because the trial judge followed the procedures set
forth in rule 29, Boyer “bears the heightened burden of
demonstrating either actual bias or abuse of discretion.” 12 See
State v. Asta, 2018 UT App 220, ¶ 20, 437 P.3d 664 (cleaned up).
12. Boyer does not argue that the reviewing judge abused his
discretion in denying the motion for disqualification. Rather, he
argues that the trial judge “abused and exceeded his discretion”
in making the challenged comments at sentencing. This is not the
relevant inquiry. See State v. Asta, 2018 UT App 220, ¶ 20, 437
P.3d 664 (concluding that a movant bears a heightened burden
of demonstrating either that the sentencing judge was actually
biased or that the reviewing judge abused discretion in denying
motion).
20170423-CA 35 2020 UT App 23State v. Boyer
Alternatively, “a trial judge’s failure to recuse based on the
appearance of bias may be grounds for reversal if actual
prejudice is shown.” State v. Alonzo, 973 P.2d 975, 979 (Utah
1998). Because Boyer has not established either actual bias or
an appearance of bias and prejudice, he is not entitled to a new
trial.
A. Actual Bias
¶72 “Due process guarantees an absence of actual bias on the
part of a judge.” Williams v. Pennsylvania, 136 S. Ct. 1899, 1905
(2016) (cleaned up). Because “bias is easy to attribute to others
and difficult to discern in oneself,” governing case law “asks not
whether a judge harbors an actual, subjective bias, but instead
whether, as an objective matter, the average judge in his position
is likely to be neutral, or whether there is an unconstitutional
potential for bias.” Id. (cleaned up). Thus, the Due Process
Clause requires recusal when a judge has “a direct, personal,
substantial, pecuniary interest” in a case and in other instances
where, objectively, “the probability of actual bias on the part of
the judge or decisionmaker is too high to be constitutionally
tolerable.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876, 877
(2009) (cleaned up). Accordingly, rule 2.11(A) of the Utah Code
of Judicial Conduct contemplates disqualification where, for
example, “the judge has a strong personal bias or prejudice
concerning a party,” has prior evidentiary knowledge of the
case, “or has a financial or property interest that could be
affected by the outcome of the proceeding.” State v. Munguia,
2011 UT 5, ¶ 17, 253 P.3d 1082 (cleaned up); accord Utah Code
Jud. Conduct 2.11(A).
¶73 On the other hand, “[t]he fact that a judge has formed an
opinion regarding a particular defendant based on proceedings
occurring in front of the judge is not a ground for
disqualification listed in [the Utah Code of Judicial Conduct].”
State v. Kucharski, 2012 UT App 50, ¶ 4, 272 P.3d 791. This is true
because “bias and prejudice are only improper when they are
20170423-CA 36 2020 UT App 23State v. Boyer
personal.” Munguia, 2011 UT 5, ¶ 17 (cleaned up). “Neither bias
nor prejudice refers to the attitude that a judge may hold about
the subject matter of a lawsuit.” Id. (cleaned up). Consequently,
to require recusal, “the bias or prejudice must usually stem from
an extrajudicial source, not from occurrences in the proceedings
before the judge.” Id. (cleaned up). “‘Judicial remarks during the
course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge,’” Kucharski, 2012 UT App
50, ¶ 5 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)),
as long as the judge “decide[s] the case only after all the
evidence is heard” and “does not allow the propensities to
obscure the evidence,” Madsen v. Prudential Fed. Sav. & Loan
Ass’n, 767 P.2d 538, 546 (Utah 1988) (cleaned up).
¶74 In a similar case, our supreme court held that the judge’s
remarks at sentencing did not violate the defendant’s due
process rights to an impartial judge. Munguia, 2011 UT 5, ¶¶ 19–
20. The defendant, who pled guilty to multiple counts of sexual
abuse of a child, argued that the sentencing judge displayed
“hostility and ill will” by “(1) challenging [the defendant] about
whether he understood who was at fault for the abuse; (2) twice
asking [the defendant] if he still thought it was a good
experience for his daughter to masturbate and fellate him; (3)
commenting that [the defendant] had ‘ruined’ an innocent child;
(4) stating that [the defendant’s] daughter now had ‘almost zero
chance of having a stable marriage’; and (5) ‘opining’ that [the
defendant] had ‘destroyed’ his daughter, who trusted him.” Id.
¶ 18. The court concluded that the defendant had not established
that the judge’s ill will and anger toward the defendant were
“motivated by an extrajudicial source or anything other than [the
defendant’s] own actions” in the case. Id. ¶ 19. Rather, there was
“more than enough information in the record to indicate that
any bias against [the defendant] stemmed from occurrences in
the proceedings before the judge,” including statements that the
judge read from the pre-sentencing report and heard from the
prosecutor at sentencing. Id. (cleaned up).
20170423-CA 37 2020 UT App 23State v. Boyer
¶75 Similarly, in this case, the trial judge’s comments were
based on the evidence presented at trial, not gleaned from an
improper source. The trial judge’s assessment of the victim’s
credibility was based, not on prior knowledge or outside
association, but on observing her testify at trial and her behavior
and demeanor in open court. Similarly, his assessment of the
defendant was not based on extrajudicial knowledge about
Boyer but on the evidence presented at trial and sentencing. And
the judge’s remarks about the defendant “probably never”
getting out of prison presumably referred to the sentence the
court imposed, requiring Boyer’s two fifteen-year-to-life
sentences to run consecutively.
¶76 Boyer has pointed us to nothing in the record that shows
“that [the trial judge’s] anger was motivated by an extrajudicial
source or anything other than [Boyer’s] own actions in this case.”
See id. While we expect that judges “be patient, dignified, and
courteous” to those with whom the judge deals in an official
capacity, “that does not mean that due process or our Code of
Judicial Conduct are violated whenever a defendant’s criminal
conduct and subsequent excuses inspire anger in a judge.” Id.
¶ 20 (cleaned up). Nor should we require judges to refrain from
offering words of encouragement or comfort to a crime victim at
sentencing. The trial judge’s comments in this case fall well short
of “reveal[ing] such a high degree of favoritism or antagonism as
to make fair judgment impossible.” See Liteky, 510 U.S. at 555.
Therefore, Boyer has not established actual bias.
B. Appearance of Bias Resulting in Actual Prejudice
¶77 Boyer also argues that the trial judge’s comments at
sentencing created an appearance of bias. When, as in this case,
the trial judge follows the procedures set forth in rule 29, a
defendant must ordinarily establish actual bias on the part of the
trial judge or an abuse of discretion on the part of the reviewing
judge. However, our supreme court has recognized that “a trial
judge’s failure to recuse based on the appearance of bias may be
20170423-CA 38 2020 UT App 23State v. Boyer
grounds for reversal if actual prejudice is shown.” Alonzo, 973
P.2d at 979 (citing State v. Gardner, 789 P.2d 273, 278 (Utah 1989));
see also Utah R. Crim. P. 30(a). Here, we need not examine
whether Boyer was prejudiced because he has not established an
appearance of bias.
¶78 A judge should recuse him- or herself for appearance of
bias when the judge’s impartiality might reasonably be
questioned. Alonzo, 973 P.2d at 979; see also Utah Code Jud.
Conduct R. 2.11(A). “The question of a judge’s impartiality is
determined by viewing the question through the eyes of a
reasonable person, knowing all the circumstances.” Asta, 2018
UT App 220, ¶ 18 (cleaned up).
¶79 Utah courts have addressed only one instance where a
judge’s comments during trial created an appearance of bias.
See State v. Alonzo, 932 P.2d 606, 611 (Utah Ct. App. 1997), aff’d,
973 P.2d 975 (Utah 1998). In Alonzo, the trial judge allegedly
stated prior to trial, in chambers, and with both parties
present, that the defendants’ case “could be resolved quickly if
they would waive their right to a jury trial and ‘just plead
guilty,’” and allegedly “suggested that he knew, based on his
experience as a prosecutor, that [defendants] were guilty.”
Alonzo, 973 P.2d at 979. The State argued that the comments
were made in jest, but this court and our supreme court found
the question of sincerity immaterial because the comments
“created an appearance of bias” in that they “suggested [the
judge] had formed an opinion as to defendants’ guilt even before
the trial began,” Alonzo, 932 P.2d at 611, which would “call into
serious question the impartiality of any judge,” Alonzo, 973 P.2d
at 979.
¶80 In contrast, the trial judge’s comments here do not create
an appearance of bias. The “reasonable person” listening to the
judge’s statements and “knowing all the circumstances,” see
Asta, 2018 UT App 220, ¶ 18 (cleaned up), would not believe that
the trial judge had prejudged Boyer’s post-trial motions. At the
20170423-CA 39 2020 UT App 23State v. Boyer
time of the sentencing hearing, Boyer had not yet filed any post-
trial motions, and the trial judge’s comments did not suggest
that the judge had formed an opinion as to the merits of any
future motions or proceedings.
¶81 To the contrary, the only opinions expressed by the judge
related to the sentencing proceeding at hand. Cf. State v. Lane,
2019 UT App 86, ¶ 33, 444 P.3d 553 (holding, in the context of an
ineffective assistance of counsel claim, that the court’s finding
that the defendant was “a danger to society” for purposes of
determining his pretrial release status was not grounds for a
disqualification motion). At sentencing, the judge is charged
with considering all of the aggravating and mitigating
circumstances surrounding the offense. See State v. Wood, 2018
UT App 98, ¶ 12, 427 P.3d 452. For instance, determining
whether to impose concurrent or consecutive sentences requires
judges to consider “the gravity and circumstances of the
offenses, the number of victims, and the history, character, and
rehabilitative needs of the defendant,” see Utah Code Ann. § 76-
3-401 (LexisNexis Supp. 2019), and “the granting or withholding
of probation involves considering intangibles of character,
personality and attitude,” see State v. Cline, 2017 UT App 50, ¶ 7,
397 P.3d 652 (cleaned up). Moreover, crime victims have the
right, enshrined in the Utah Constitution, to address the court at
sentencing and “[t]o have a sentencing judge, for the purpose of
imposing an appropriate sentence, receive and consider, without
evidentiary limitation, reliable information concerning the
background, character, and conduct of a person convicted of an
offense.” Utah Const. art. I, § 28.
¶82 Accordingly, a sentencing judge cannot—and should
not—avoid addressing aggravating and mitigating
circumstances on the record, a duty which may well include
observations about the character of the defendant, the gravity of
the offense, and the impact on the victim. Requiring a trial judge
to recuse from hearing post-trial motions based on such
statements would require frequent reassignment of those
20170423-CA 40 2020 UT App 23State v. Boyer
motions to a new judge with no familiarity with the facts of the
case and no firsthand knowledge of the proceedings on which
the motions are based. Such a requirement would exact too high
a price in terms of judicial efficiency, public confidence, and
prompt disposition of criminal cases.
¶83 Because Boyer has not demonstrated that a reasonable
person, knowing all the circumstances, would question the
judge’s ability to impartially preside over post-trial proceedings,
it is not necessary to consider Boyer’s argument that the district
court’s rulings related to restitution demonstrate actual
prejudice. 13
III. Motion to Reconstruct the Record
¶84 Finally, Boyer argues that the district court erred in
denying his motion to reconstruct the district court record with
the victim’s medical and mental health records, which the
district court reviewed in camera. Boyer contends that it is
impossible for us to review the district court’s determination that
the records did not contain any materially exculpatory
information, and we agree. See State v. Cramer, 2002 UT 9, ¶ 25,
44 P.3d 690 (“We are unable to review [the district court’s] ruling
regarding materiality . . . because the medical records were not
included in the appellate record.”). However, in this case, we
concluded that Boyer cannot show he was entitled to in camera
review of the victim’s records under rule 506(d)(1). Supra ¶¶ 53-
60. As a result, Boyer cannot show that he was prejudiced by the
absence of the victim’s medical and mental health history from
13. Contrary to Boyer’s assertion in his reply brief, the court’s
restitution rulings were not asserted as an independent basis for
reversal in the opening brief, as they were raised solely in the
context of establishing actual prejudice from the court’s failure to
recuse. We do not consider issues raised for the first time in
reply briefs. See Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903.
20170423-CA 41 2020 UT App 23State v. Boyer
the record on appeal. 14 See State v. DeJesus, 2017 UT 22, ¶ 19, 395
P.3d 111 (holding that a defendant must show prejudice in order
to obtain a reversal of his conviction based on the State’s
destruction of evidence in violation of his due process rights).
CONCLUSION
¶85 The district court did not err in denying Boyer’s motion
for a new trial based on cumulative error. In addition, because
the district court was neither actually nor apparently biased
against Boyer, the reviewing judge properly denied Boyer’s
motion to disqualify. Finally, Boyer was not prejudiced by the
absence of the victim’s medical and mental health history from
the record on appeal because he was not entitled to an in camera
review of those records in the first instance. Accordingly, Boyer’s
convictions are affirmed.
14. Similarly, Boyer cannot show that he was prejudiced by his
trial counsel’s failure to object to the court’s shredding of the
records after in camera review, even assuming that counsel’s
failure to object was error.
20170423-CA 42 2020 UT App 23