S.M. v. State

• Docket Number: 20230172-CA
• Decision Date: 19 September 2024
• Citation: 557 P.3d 649
• Parties: STATE of Utah, IN the INTEREST OF S.M., a Person Under Eighteen Years of Age. S.M., Appellant, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

557 P.3d 649

2024 UT App 135

STATE of Utah, IN the INTEREST OF S.M., a Person Under Eighteen Years of Age.

S.M., Appellant,

v.State of Utah, Appellee.

No. 20230172-CA

Court of Appeals of Utah.

Filed September 19, 2024

Third District Juvenile Court, West Jordan Department, The Honorable Elizabeth A. Lindsley, No. 1203299

D. Grant Dickinson, Provo, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Daniel W. Boyer, Attorneys for Appellee

Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and John D. Luthy concurred.

Opinion

TENNEY, Judge:

¶1 In August 2021, two children accused S.M. (a minor) of inappropriately touching them while S.M. was babysitting them.Following a bench trial at which both children testified, the juvenile court found that S.M. had committed two counts of aggravated sexual abuse of a child, and the court then adjudicated her delinquent as a result.S.M. now appeals, arguing that (1) the children’s claims were inherently improbable and there was accordingly insufficient evidence to support the adjudication, and (2) her counsel was ineffective for not requesting a continuance of the trial.Contemporaneous with her brief, S.M. also filed a motion under rule 23B of the Utah Rules of Appellate Procedure, asking for a remand to further investigate her ineffective assistance claims.For the reasons set forth below, we affirm the juvenile court’s adjudication and deny S.M.’s request for a remand.

BACKGROUND

Underlying Allegations

¶2 On August 12, 2021, S.M. babysat three siblings for a few hours, something that S.M. had frequently done over the previous two years.S.M. was thirteen years old at the time (though she was just a month shy of her fourteenth birthday), and the children she babysat—A.A., C.A., and L.A.—were eight, six, and three years old, respectively.

¶3 When S.M. arrived at the house around 4 p.m., the children’s mother(Mother) told S.M. that "A.A. had an earache, so [they] could just watch a movie" while she was gone.After Mother left, S.M. took the children to an upstairs playroom to watch the movie.

¶4 S.M. watched the children for approximately two hours.When Mother arrived back home around 6 p.m., A.A. "immediately" came downstairs and "just hugged [her] for a really long time."S.M. came down "right behind her," and after talking to Mother for a minute, S.M. left.The "second [S.M.] shut the door," A.A. told Mother that S.M. had "touched [her] vagina."Mother was "just in shock" upon hearing this, and she and A.A. then "talked in the kitchen for a minute" about what A.A. had said.At that point, C.A. "came running down the stairs" and said, "S.M. touched my privates."Mother later testified that because of where C.A. had been in the house, she was "certain" that C.A. "couldn’t have heard" A.A. when A.A. told Mother that S.M. had abused her.

¶5Mother did not "immediately call the police" or Utah’s Division of Children and Family Services(DCFS), later explaining that she"was in shock" and "just didn’t know" what to do.Instead, Mother took A.A. to a doctor’s appointment that she had previously scheduled for A.A.’s earache.At trial, Mother testified that she"told the doctor everything about what happened" with "the alleged sexual assault" and that the doctor "told [her] to call the police."But Mother also said that she informed the doctor that the two families were friends and neighbors, so she"wanted to talk to S.M.’s parents" before she made an official report so that they could know what was happening "before they had the police just show up at their house."

¶6 Later that evening, Mother sent S.M.’s mom a text message asking if they could meet the next day.Mother did not tell S.M.’s mom the purpose of the meeting, but she did indicate it was "serious" while also stating that she"didn’t want to alarm" her.Shortly after sending this text, Mother received an unsolicited text message from S.M. that read as follows:

I saw that you were texting my mom and I just want you to[] know that if I did anything I didn’t mean to do it.I promise.

¶7Mother met with S.M.’s parents the following day and told them about A.A.’s and C.A.’s allegations.Mother also told S.M.’s parents that she would be reporting the incident to DCFS.Before Mother could actually report the allegations to DCFS, however, she received a call from DCFS, and DCFS investigators then came to her house that same day to discuss the matter.Mother later testified that she did not know who had made the initial report to DCFS.

¶8 A day or two later, Mother and her family went on a pre-planned out-of-state vacation.Mother later said that she was unable to "schedule a meeting" with anyone from law enforcement before leaving because "nobody was available."After returning from vacation about two weeks after S.M. had babysat the children, A.A. and C.A. were separately interviewed at a Children’s Justice Center (CJC).

¶9 During A.A.’s interview, which was recorded and later played at trial, A.A. told the CJC investigator that while S.M. was babysitting her, S.M. had "touched [A.A.’s] private area" and had also kissed both A.A. and L.A. (A.A.’s three-year-old brother) on the lips.A.A. told the investigator that she had been "wearing a leotard" that night because she was supposed to go to gymnastics but that she had stayed home because her "ear hurt too much."A.A. told the investigator that while they were upstairs, she was lying on the couch next to S.M. watching the movie when S.M. reached "through the top" of her leotard and touched her chest.A.A. then said that after S.M. touched her through the top of her leotard, S.M. "got her hand out and then she went [through] the bottom" and touched A.A.’s "private parts."When the investigator asked A.A. if those private parts "have another name," A.A. responded that she"[didn’t] want to talk about it."But A.A. told the investigator that she uses those private parts to "go potty."

¶10 A.A. told the investigator that she asked S.M. to "[s]top it" but that S.M. "didn’t stop," and A.A. also said that she"tried to … cover" herself but that S.M. "wouldn’t let [her]."A.A. said that she wanted to use the family’s "Alexa" to call Mother, but that S.M. prevented her from going downstairs where the Alexa was so A.A. was unable to make a call.¹According to A.A., it was only when they"heal’d the garage open" that S.M. stopped touching her.Once the garage door opened, A.A. said that S.M. "kissed [her]" on the lips and then kissed L.A. as well before going downstairs to talk to Mother.When asked how she felt when S.M. touched her, A.A. told the investigator that it made her feel "sad and mad and really awkward" and "yucky."

¶11 During C.A.’s CJC interview, which was also recorded and played at trial, C.A. told the investigator that while she was watching a movie with S.M., S.M. had "put up [C.A.’s] dress and then touch[ed her] private parts."C.A. said that she kept "saying stop" but that S.M. kept "going longer and longer."When asked about the "private parts" that S.M. touched, C.A. told the investigator it was her "vagina" and "butt."C.A. said that this made her "sad and mad."C.A. also said that after S.M. touched her private parts, she went and "laid on the ground and fell asleep."She also told the investigator that her sister, A.A., was telling S.M. to "stop."While C.A. indicated that she thought S.M. was touching her private parts and A.A.’s private parts at the "same time,"she was less clear about whether she actually saw S.M. touching A.A.

¶12 Midway through the interview, the investigator told C.A. that she would be "going away for just a few minutes" and that while she was away, she wanted C.A. "to stay in [the room] and think about if there’s something [she] forgot to ask" or if there was "something that [C.A.] forgot to tell [her] about."As soon as the investigator returned, C.A. said that there was something she"meant to tell [the investigator] about," which was that Mother had "left her phone, so [they] can call her," and that when S.M. had "touched [her] private part, [she] went to call [Mother], and A.A. did too."According to C.A., she then "went to get it and called"Mother, after which Mother came home and "the babysitter left."

Petition and Trial

¶13 A few months later, the State filed a petition with the juvenile court alleging that S.M. had committed two counts of aggravated sexual abuse of a child.

¶14 On November 11, 2022, counsel for S.M. (Counsel) requested "[a]ll medical documents for [A.A.’s] visit to the doctor on August 12, 2021."Counsel did not receive the medical records he requested until January 17, 2023, which was just a few days before the scheduled trial.

¶15 A two-day bench trial was then held the following week.During its case in chief, the State called five witnesses to testify: A.A., C.A., Mother, and the two CJC interviewers.The State also played both CJC interviews for the court.During the defense case, Counsel called S.M. and S.M.’s mom to testify, as well as an expert witness to "address specific child interview issues along with police policy and procedure issues."Counsel also recalled Mother to the stand to ask some additional questions that he had been unable to ask during cross-examination.Below, we highlight the portions of the witnesses’ testimonies that are relevant to this appeal.

¶16 A.A., who was nine years old at the time of the trial, was asked by the State"why"she was in court that day, and she responded that she was there "[b]ecause S.M. touched our private parts, and that was not okay."A.A. testified that the touching had happened in the "playroom" while she was on the couch with S.M., and she further explained that she"had [her] leotard on" because she was about "to go to gymnastics" but that she did not end up going.A.A. testified that "C.A. was asleep like half of the time" that S.M. was babysitting, and A.A. said she didn’t think she ever saw "S.M. touch C.A."A.A....