State v. Adams

• Decision Date: 02 April 1998
• Docket Number: No. 960092-CA,960092-CA
• Citation: 955 P.2d 781
• Parties: 340 Utah Adv. Rep. 3 STATE of Utah, Plaintiff and Appellee, v. Nealy W. ADAMS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 781

955 P.2d 781

340 Utah Adv. Rep. 3

STATE of Utah, Plaintiff and Appellee, v. Nealy W. ADAMS, Defendant and Appellant.

No. 960092-CA.

Court of Appeals of Utah.

April 2, 1998.

Gregory G. Skordas, Lloyd R. Jones, and Brett J. DelPorto, Salt Lake City, for Defendant and Appellant.

Jan Graham and Joanne C. Slotnik, Salt Lake City, for Plaintiff and Appellee.

Before DAVIS, P.J., and BILLINGS and JACKSON, JJ.

OPINION

BILLINGS, Judge:

Nealy W. Adams appeals from a conviction of forcible sexual abuse in violation of Utah Code Ann. § 76-5-404(1) (1996). We affirm.

FACTS

In 1993, Adams began a relationship with Virla Hess and soon moved into Virla's home, where she lived with her thirty-four-year-old Downs' Syndrome daughter, Carleen. Carleen functions at the cognitive level of a three-and-a-half-year-old.

About a year after he moved in with Virla and Carleen, Adams, who was a regular drinker, began to drink more heavily. Occasionally Adams would become so inebriated that he could not remember the next morning what he had done while he was drunk. During this time, Virla noticed Carleen was more reclusive and that she began taking her meals into her room.

After Adams had lived with Virla for almost two years, the relationship began to deteriorate. Adams was frequently drunk, and the couple argued bitterly. One night in 1995 at about 1:30 a.m., Virla awoke to a loud bang, followed by the sound of breaking glass coming from Carleen's room. When she went to investigate, she found a broken clock and saw Adams, naked, emerge from Carleen's room with his pants in his hand. Adams later said he could not remember anything that happened that night, but he did recall Virla talking to him about the incident the next morning.

A few weeks after this incident, the couple agreed that Adams should leave the house. When Virla told Carleen that Adams was moving out, Carleen said that Adams had been molesting her. Four days after Adams had removed all of his belongings, Virla contacted the police and reported the alleged abuse.

Detective DeHart interviewed Carleen at her home, in Virla's presence. Adams was later charged with one count each of rape and forcible sexual abuse. A jury acquitted Adams of the rape charge and convicted him of forcible sexual abuse. Adams now appeals.

ANALYSIS

I. Competency of Witness

Adams initially argues his trial counsel was constitutionally ineffective because counsel failed to object to Carleen's testimony on the ground that she was incompetent. To prevail on an ineffective assistance of counsel claim the defendant must show " 'counsel's representation fell below an objective standard of reasonableness.' " State v. Templin, 805 P.2d 182, 186 (Utah 1990) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). The defendant must also show "a reasonable probability exists that except for ineffective counsel, the result would have been different." State v. Lovell, 758 P.2d 909, 913 (Utah 1988).

Under Utah law governing competency of witnesses, Adams's trial counsel did not err by failing to request a competency hearing. In Utah "[e]very person is competent to be a witness except as otherwise provided in these rules." Utah R.Evid. 601(a). "This language was intended to abolish age, mental capacity, and other grounds which used to render a person incompetent as a witness." State v. Fulton, 742 P.2d 1208, 1217 (Utah 1987) (emphasis added). The current version of Rule 601 has "completely altered the law with respect to witness competency." Id. Thus, under current Utah law, all witnesses, even mentally deficient witnesses, are presumed competent.

Adams points to several of Carleen's mental deficiencies as evidence she was clearly incompetent to testify, including that she could not spell her name, count past twenty-nine, or correctly identify her belly button, knee, or vagina. However, while this evidence shows Carleen functions well below normal, it does not show she was unable to appreciate the need to tell the truth or that she was unable to relate information to others. We therefore conclude counsel was not ineffective for failing to request a competency hearing.

II. Admission of Testimony on Whether Victim Had Been Coached

A. Dr. Hawks

Adams argues the prosecution failed to establish proper foundation for Dr. Hawks's testimony regarding whether Carleen was capable of being coached. ¹ According to Adams, Dr. Hawks's testimony did not meet the reliability requirement established in State v. Rimmasch, 775 P.2d 388 (Utah 1989).

Rimmasch ... sets forth a three-part standard for admitting scientific evidence under Utah Rule of Evidence 702. Rimmasch first requires a threshold showing of inherent reliability. A proponent may either show a general acceptance of the principle or technique in the relevant scientific community or proffer a sufficient foundation to demonstrate the inherent reliability of the underlying principles and techniques....

If the proponent can satisfy this threshold requirement of inherent reliability, only then need the court consider the remaining two steps. Rimmasch's second requirement is a "determination that there is an adequate foundation for the proposed testimony, i.e., that the scientific principles or techniques have been properly applied to the facts of the particular case by qualified persons and that the testimony is founded on that work."

Finally, if the court is satisfied regarding this second determination, it must balance the probative value of the proffered evidence against the dangers its admittance poses under rule 403 of the Utah Rules of Evidence. Rimmasch also points out that "when the inferences from the scientific evidence sweep broadly or cut deeply into sensitive areas, a stronger showing of probative value should be required. Such a 'sensitive area' is one central to the core of the fact-finding process--whether one witness or another is telling the truth."

State v. Brown, 948 P.2d 337, 340-41 (Utah 1997) (citations omitted) (quoting Rimmasch, 775 P.2d at 398, 399 n. 8). In applying the Rimmasch standard, it is helpful to review Dr. Hawks's entire testimony regarding whether Carleen could have been coached:

Q. ... Could your evaluation and expertise tell you whether [Carleen] was sophisticated enough to make up the story that was alleged here?

A. And, of course, as I mentioned, that's one of the things we deal with all the time, did somebody coach you--

[DEFENSE COUNSEL]: And at this point, Your Honor, I'm going to object to his answering that until there's further foundation. What he's talking about now I don't believe--he's gone into his examination of her testifying truthfully in this case. That, again, is the prerogative of the jury. I think it's improper.

THE COURT: Well, I think the form of the question is different and he has given some background. The objection is overruled.

A. In my opinion, that's a difficult question and surely I couldn't answer that 100 percent positively; however[,] it would seem that someone who--in the school system who has been taught in special ed and resource classes[,] and she's 34, I believe[,] and if all those years of special ed and resource classes couldn't get her to even write her name correctly, couldn't get her to ... count past number 50 or say the alphabet, that I'd have trouble--it would be difficult for me to assume somebody could coach her, even if they tried, to consistently report anything, you know, even their birthday. I mean, she was inaccurate in giving her birthday. She struggled with that.

So I find it troubl[ing] if--if she has difficulty in doing, you know, second and third grade level, that I would--I'd have real trouble to see anybody[--]a mother or me or the school system[--]if they can't do it with counting, how could--I ask myself, could someone do it with persuasion or threats to[,] to get her to consistently across two interviews spontaneously talk about some sexual activities that occurred.

So in my opinion, that's probably not likely.

We must first determine, then, whether the information upon which Dr. Hawks based his opinion was inherently reliable. Before Dr. Hawks answered the prosecution's question regarding whether Carleen could have been coached, he testified extensively about Carleen's educational background and training. Dr. Hawks further testified regarding the WAIS-R test he administered to determine Carleen's Intelligence Quotient and the Vineland test to determine her functioning ability. According to his testimony, the WAIS-R has been administered since the 1950s and the Vineland has been administered for a similarly long period, having been revised in the 1980s. These scientific methodologies clearly meet the inherent reliability requirement of Rimmasch.

As for the second foundation requirement of Rimmasch, we conclude Dr. Hawks's testimony satisfies the mandate that "the scientific principles [must] ... have been properly applied to the facts." Rimmasch, 775 P.2d at 398. Dr. Hawks opined that, based on Carleen's very limited cognitive abilities, it was unlikely that she could successfully be taught to repeat a fabrication over time. By so testifying, Dr. Hawks provided "specialized knowledge" to help the trier of fact determine whether Carleen had the mental capacity to render Adams's theory of the case possible. Cf. State v. Teeter, 85 N.C.App. 624, 355 S.E.2d 804, 808 (1987) (concluding expert's opinion based on experience in treating sexually abused mentally retarded persons, familiarity with research in the field, and personal examination of victim was helpful to jurors in understanding evidence and therefore admissible under Rule 702); State v. Oliver, 85 N.C.App. 1, 354 S.E.2d 527, 533-34 (1987) (holding expert testimony was helpful to trier of fact in assessing credibility of mentally retarded victims who reported sexual abuse and thus was admissible under Rule 702).

Furthermore, unlike the...