State v. Anderson

• Citation: 475 P.3d 967
• Decision Date: 01 October 2020
• Docket Number: No. 20190235-CA,20190235-CA
• Parties: STATE of Utah, Appellee, v. Kristopher Allen ANDERSON, Appellant.
• Court: Court of Appeals of Utah

475 P.3d 967

STATE of Utah, Appellee,

v.Kristopher Allen ANDERSON, Appellant.

No. 20190235-CA

Court of Appeals of Utah.

Filed October 1, 2020

Ronald J. Yengich, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

Opinion

HAGEN, Judge:

¶1 Kristopher Allen Anderson appeals his convictions for child sodomy and child sexual abuse. On appeal, he raises multiple issues, most of which were not preserved by his trial counsel. He argues that the State committed prosecutorial misconduct by eliciting prejudicial testimony regarding the impact of the abuse on the victim and by commenting on Anderson's failure to return a detective's phone calls. Further, Anderson argues that his trial counsel rendered ineffective assistance by providing the State with his psychosexual evaluation and by not objecting when the State used Anderson's statements to the evaluator for impeachment. He also argues that the district court plainly erred in allowing the impeachment or, at minimum, should have admitted the entirety of the evaluation once the State "opened the door." He also alleges that his trial counsel was ineffective for commenting on a failed plea agreement and failing to advise him of the correct mandatory minimum sentence. Relatedly, he asserts that because he was not advised of the correct mandatory minimum sentence, the district court erred by denying his motion to arrest judgment. Because Anderson has not established any claims of ineffective assistance of counsel, plain error, or abuse of discretion, we affirm.

BACKGROUND¹

¶2 Anderson, the victim's cousin, travelled from Idaho to visit the victim's family in St. George, Utah, on June 18, 2016. The victim's family did not know in advance that he was coming. When he arrived at their home unexpectedly, Anderson asked whether he could stay the night and whether he could bring beer to drink. The victim's mother and father agreed.

¶3 The victim and his family lived in a three-bedroom apartment. The victim's two older sisters, who were then ages thirteen and eleven, shared a bedroom. The victim, who was six years old at the time, typically slept in the same room as his nineteen-year-old brother. Anderson stayed the night, sleeping in the boys’ bedroom. Anderson and the two boys stayed up late playing video games in the boys’ room and did not go to sleep until after the victim's parents and two sisters were asleep. Anderson drank beer throughout the night.

¶4 The next morning, Anderson departed before the others awoke. When the mother awoke, she found the victim asleep next to her bed in a pile of laundry. After the mother left for work, the victim confided in one of his sisters that in the night, Anderson had pulled down the victim's pants and underwear and touched his penis and buttocks. The victim then confided in his father, telling him the same story.

¶5 After calling the victim's mother to tell her what had happened, the victim's father called Anderson and asked whether he had done what the victim said he did. Anderson responded that "he wasn't sure" and that "he was drunk and couldn't remember." The father testified that Anderson was "upset," and that he was "choked up, crying a little bit" during the phone call.

¶6 Later, the victim's mother also called Anderson. During the call, she asked if "he tried to put his penis in [the victim's] butt ... and if he was fondling him." Anderson first denied that he had, but after the mother repeated her question, he responded, "[Y]es." She then said, "You know what I have to do, right?" to which he responded, "Yeah, I know." She told him that one of them needed to tell Anderson's mother, and Anderson stated that he would.

¶7 The victim's mother and father then took the victim to the police station to report the crimes. A detective interviewed the mother and father. The next day, the victim's parents took the victim and his two sisters to the Children's Justice Center. Because they were all home during the time of the abuse, each child was interviewed. The following month, the victim's parents took him to a pediatrician to be examined, but the examination did not lead to any specific findings.

¶8 As part of the investigation, a detective called Anderson to get more information. When Anderson did not answer, the detective left a voicemail. A few days later, Anderson called back and left a voicemail for the detective. The detective continued calling, but Anderson never returned the subsequent phone calls. In his testimony at trial, Anderson attempted to excuse his failure to return the phone calls by explaining that he entered a sober living facility on June 22 and did not have access to his phone.

¶9 During trial, the victim testified that on the night of the abuse, he had slept on the floor in the boys’ room, while Anderson and his brother slept on the bed. He testified that at some point during the night, while his brother was asleep, Anderson got down on the floor next to him and "pulled down [his] pants and then he pulled down [his] underwear and then [Anderson] started touching [his] privates." He testified that Anderson had also put "his wiener" on "his butt," was "wiggling" it, and then told him, "[D]on't tell." The victim testified about disclosing the abuse to his family the next day and later during his interview at the Children's Justice Center.

¶10 The State also presented testimony from the victim's parents, both sisters, and the brother. Among other things, each witness detailed changes in the victim's emotional wellbeing since the abuse had occurred. Specifically, they all noted that before the abuse, the victim had been a happy, normal child. However, family members testified that, since the incident, the victim had become depressed, scared, and anti-social. The mother noted that the victim became "angry, very emotional, very untrusting," and "would be very sick to his stomach" and "would wet himself ... if he knew that he was in a position to where he had to talk to someone about [the abuse]." She also testified that the victim had "threatened to kill himself several times." The victim's parents both noted that the victim slept in their room almost every night after the incident; he had done so only rarely before. The victim began counseling to help with these issues. The mother also testified that they had gotten the victim a service dog.

¶11 Anderson testified at trial. He indicated that he drank "five or six beers" throughout the night and stayed up playing video games with the victim's brother until he went to sleep at approximately 4:00 a.m. He testified that he slept between the victim and the brother on the bed, then awoke at 5:00 a.m., and left before the others had gotten up.

Anderson also testified that he had been "terrified" by the phone calls from the victim's parents and had responded "no" when the mother asked him whether he had stuck "[his penis] in [the victim's] butt." He testified that when he responded to the mother's accusation by saying, "Yeah, okay," he was agreeing only to call his mother and get some help, such as "sober living." Anderson denied sexually abusing the victim.

¶12 The jury convicted Anderson on one count of child sodomy and on one count of child sexual abuse. He now appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 On appeal, Anderson raises five grounds for reversal. He frames his first two arguments as claims of prosecutorial misconduct. He argues that the State engaged in prosecutorial misconduct, first, by eliciting prejudicial testimony about the long-term impact of Anderson's crimes on the victim and, second, by improperly commenting on Anderson's failure to return the detective's phone calls in violation of his Fifth Amendment right to remain silent. Because his claims are unpreserved, he argues that his counsel rendered constitutionally ineffective assistance by failing to object and that the district court plainly erred in failing to address these instances of alleged misconduct even in the absence of an objection. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587 (cleaned up). "The plain error standard of review requires an appellant to show the existence of a harmful error that should have been obvious to the district court." State v. Hansen , 2020 UT App 17, ¶ 10, 460 P.3d 560 (cleaned up).

¶14 Third, Anderson argues that his counsel rendered ineffective assistance by providing the State with a copy of a psychosexual evaluation containing information that the State used to impeach Anderson on cross-examination. We review this ineffective assistance of counsel claim as a matter of law. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587. Anderson also argues that the district court plainly erred by allowing the State to impeach him with certain statements he made to the examining psychologist and that the district court should have allowed him to admit the remainder of the evaluation. If preserved, we review the district court's evidentiary rulings for an abuse of discretion. State v. Cegers , 2019 UT App 54, ¶ 17, 440 P.3d 924. Absent an objection, our review is limited to plain error. Id.

¶15 Fourth, Anderson argues that his trial counsel rendered ineffective assistance by improperly commenting on a failed plea agreement, thus implying to the jury that Anderson was guilty. Again, we determine as a matter of law whether a defendant was deprived of the effective assistance of counsel. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587.

¶16 Fifth, Anderson argues that his counsel provided ineffective assistance by not informing him of the correct mandatory minimum sentence for child sodomy during...