State Of Utah v. Hildreth

• Decision Date: 27 September 2010
• Docket Number: No. 20080615-CA.,20080615-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Grant HILDRETH, Defendant and Appellant.
• Court: Utah Court of Appeals

238 P.3d 444

661 Utah Adv. Rep. 32

STATE of Utah, Plaintiff and Appellee, v. Grant HILDRETH, Defendant and Appellant.

No. 20080615-CA.

Court of Appeals of Utah.

July 29, 2010.

Rehearing Denied Sept. 27, 2010.

Aaron S. Bartholomew and Carolyn E. Howard, Orem, for Appellant.

Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee.

Before Judges DAVIS, McHUGH, and ORME.

OPINION

DAVIS, Presiding Judge:

¶ 1 Grant Hildreth challenges his convictions for two counts of forcible sexual abuse, a second degree felony, see Utah Code Ann. § 76-5-404 (2008). Specifically, he argues that the trial court abused its discretion by denying his motion for severance. We reverse and remand.

BACKGROUND ¹

¶ 2 Hildreth was a licensed chiropractor practicing in Utah County, Utah. In June 2007, Hildreth was charged by information with eight counts of forcible sexual abuse, see id., in connection with his conduct involving five women he treated as chiropractic patients from 2004 to 2007. Counts I and II pertained to C.W.; Counts III and IV pertained to B.B.; Count V pertained to M.W.; and Count VI pertained to A.W. ² Prior to trial, Hildreth filed a motion requesting that the trial court sever the counts and hold a separate trial for the counts relating to each alleged victim. ³

¶ 3 The trial court held a hearing on Hildreth's motion for severance. Ruling from the bench, the trial court denied the motion. Without determining whether a common scheme or plan existed or whether the crimes were connected in their commission, see Utah Code Ann. § 77-8a-1(1)(a)-(b) (2008), the trial court reasoned that joinder of the counts was proper because Hildreth would not be prejudiced under rule 404(b) of the Utah Rules of Evidence. Specifically, the trial court concluded that Hildreth would not be prejudiced by denying the motion for severance because under rule 404(b) “the evidence ... as to one victim would be [ ]admissible as to the others ... on the issue of absence of mistake, or accident, motive, mental state and plan.” See generally Utah R. Evid. 404(b) (discussing when evidence of other crimes, wrongs, or acts is inadmissible). The trial court further stated that the “factors that the Court has focused upon in finding that [the evidence] is going to be admissible under 404(b)” included the following: (1) each count involved Hildreth, who “exploited a position of trust as a chiropractor”; (2) each count occurred while Hildreth was providing chiropractic care; and (3) each count happened in Hildreth's office. ⁴ Aside from these brief comments, the trial court did not otherwise analyze the issue of prejudice, including whether the evidence was relevant, see id. R. 401, 402, or whether the evidence would be more probative than prejudicial, see id. R. 403.

¶ 4 After the trial court denied the motion, the charges involving B.B., M.W., and A.W. remained joined with those involving C.W. and the case proceeded to trial on all those counts. All four women testified during the State's case-in-chief. Hildreth took the stand and testified in the defense's case-in-chief.

B.B.'s Testimony (Counts III and IV)

¶ 5 B.B. testified that in June or July 2006, she saw Hildreth for routine chiropractic care. During her second appointment, Hildreth had B.B. get undressed from the waist up and put on a hospital gown. After examining her spine, Hildreth had her lie down on the examination table and then lifted the gown up to her “neck area” so that her bare chest was exposed. B.B. testified that Hildreth felt down her chest and ribs on the right side and “went over the nipple.” B.B. testified that after that, Hildreth “pulled [her] pants down just enough to where [her] pubic bone or hair was showing” and “proceeded to with his fingers just feel around on the pubic bone.” B.B. testified that during the examination, no one else was in the room.

B.B. also testified that she did not say anything to Hildreth about the exam making her uncomfortable but that other chiropractors had previously done the same exam and she had “always” had her clothes on. B.B. testified that she saw Hildreth “probably 30, 40 times” after the second visit but usually had her husband with her.

¶ 6 B.B. testified that in February or March of 2007, she returned to Hildreth for another appointment. During her examination, Hildreth mentioned that he had a new ultrasound machine that could help repair the damaged muscle tissue on her back. B.B. testified that she undressed from the waist up and put on a hospital gown. After treating her with the machine, Hildreth had B.B. stand up with her back against his chest so that he could adjust a rib. B.B. testified that as Hildreth was doing the adjustment, he “reached his hand underneath [her] gown and around [her] waist so his hand was actually on [her] breast.” This caused B.B. some concern because Hildreth had done this adjustment on her “probably twice” in 2006 and she had always been clothed. B.B. testified that although she went back to Hildreth four or five more times after that, he only did one more rib adjustment, after which she began telling him that she did not have time for that treatment. B.B. testified that she reported Hildreth's conduct to the police after she saw on the news that Hildreth had been arrested.

M.W.'s Testimony (Count V)

¶ 7 M.W. testified that in October 2006, she was seven months pregnant and went to see Hildreth for hip pain. M.W. testified that she remained fully clothed during her first appointment and that Hildreth adjusted her hip and then told her that he had an ultrasound machine that would repair any damage to the muscles in that area. After she sat in the chair of the machine, M.W. testified that Hildreth pulled her pants down on the side that was affected and applied the machine and some gel to her hip. M.W. testified that it made her “a little uncomfortable because [she] didn't know that was going to happen.” M.W. also testified that she told Hildreth she was having pain in her shoulder blade. Hildreth had M.W. stand up and lean against him with her back to his chest. Hildreth then put his hand down M.W.'s shirt and under her bra. Hildreth's hand was “skin to skin” with the side of her breast but did not “get down to the nipple area.” M.W. stated that they were alone in the examination room but that the door to the room was open. On her way out of the office that day, M.W. made a follow-up appointment.

¶ 8 M.W. testified that she saw Hildreth again the following week. ⁵ After the same hip adjustment and machine treatment, Hildreth offered to give M.W. a massage specifically designed for pregnant women. M.W. agreed. Hildreth took her to another room, handed her a gown, and told her to undress completely from the waist down, leaving the gown open in the front. M.W. did so. When Hildreth returned, he instructed M.W. to get on the examination table and lay down flat on her back. He then opened up the gown and tucked the bottom of her shirt up into her bra, completely exposing her naked body from the waist down. Using lotion, Hildreth then began to massage her hip and buttocks. At one point, M.W. “could feel [Hildreth] lifting up [her] back side” and “could feel [her] cheeks separating.” M.W. testified that Hildreth also touched her pelvic area. M.W. “felt very, very uncomfortable” and “couldn't believe this was happening to [her],” but didn't cry out because she “just wanted it to be over.” After the massage was over, Hildreth left the room and M.W. got dressed.

¶ 9 M.W. testified that although she soon thereafter reported Hildreth on a website, she did not initially go to the police because she “just wanted to let it go.” However, after seeing Hildreth on the news and learning of his arrest, she finally contacted the police.

A.W.'s Testimony (Count VI)

¶ 10 A.W. testified that in the spring of 2004, she saw Hildreth one time for a chiropractic treatment that her mother had arranged for her. At the time, Hildreth had anoffice set up in the basement of his home. A.W. testified that when she arrived at the home office, Hildreth told her to change in the bathroom and recommended that she remove her bra because it would make the adjustment easier. Hildreth also told her that it was “optional” to leave her underwear on, which she did. After changing, A.W. got on the massage table. Hildreth informed A.W. “that he was going to do some soft tissue work” and told her that he would be working on her arms, neck, shoulders, hips, and legs. A.W. testified that she consented to the treatment.

¶ 11 A.W. testified that during the course of the treatment, Hildreth “lightly brushed over” her crotch area over the top of her underwear. Initially, A.W. thought it was just “inadvertent touching,” but then she felt Hildreth's “hands kind of reach a little bit to the edge of where the side of [her] crotch and [her] panties were.” After his hand again “brushed” over her crotch area, A.W. testified that Hildreth's “finger slightly slid underneath” her underwear and “advanced further into the crotch of [her] panties touching [her] labia.” After the massage, Hildreth then did a more typical chiropractic “adjustment.” A.W. testified that at one point, Hildreth lifted the sheet covering her, exposing her bare breasts. A.W. testified that she was “100 percent sure there was nobody else in the room” and that she did not say anything to Hildreth because she was scared.

¶ 12 A.W. testified that after Hildreth was arrested, A.W.'s mother read of his arrest in the newspaper and recommended that A.W. contact the police and report the incident. A.W. acknowledged that at the time she made the police report, she stated that she thought the touching was an accident. At the time of trial, however, she testified that she “kn[ew Hildreth] had done something wrong.”

C.W.'s Testimony (Counts I and II)

¶ 13 Having heard the testimony of B.B., M.W., and A.W., the jury then heard C.W.'s testimony. C.W. testified that she...