State v. Bair

• Decision Date: 01 May 2012
• Docket Number: No. 20090394–CA.,20090394–CA.
• Citation: 2012 UT App 106,275 P.3d 1050,705 Utah Adv. Rep. 7
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert David BAIR, Defendant and Appellant.
• Court: Utah Court of Appeals

2012 UT App 106

275 P.3d 1050

705 Utah Adv. Rep. 7

STATE of Utah, Plaintiff and Appellee,

v.Robert David BAIR, Defendant and Appellant.

No. 20090394–CA.

Court of Appeals of Utah.

April 5, 2012.Rehearing Denied May 1, 2012.

Kenneth R. Brown and Ann M. Taliaferro, Salt Lake City, for Appellant.

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.

Before Judges ORME, DAVIS, and CHRISTIANSEN.

OPINION

DAVIS, Judge:

¶ 1 Robert David Bair appeals from a conviction and judgment of two counts of aggravated sexual abuse of a child. We reverse Bair's convictions for aggravated sexual abuse of a child and direct entry of a conviction and judgment of two counts of sexual abuse of a child.

BACKGROUND ¹

¶ 2 In August 1996, Bair separated from his wife (Mother). In a handwritten letter that he left on Mother's car (the separation letter), Bair explained that he had engaged in extramarital sex; that he was “addicted to sex”; specifically the “touchy/feely-play around part of sex”; and that he had a “clearly addictive pattern,” amounting to an “emotional disorder” that he “need [ed] help for.” The couple eventually divorced and Mother retained custody of their three children, an eight-year-old son (Son), a seven-year-old daughter (Daughter), and a four-year-old daughter (Sister). From February 1997 until December 1998, Bair lived in an apartment on his own in Layton, Utah, where his children would visit him every other weekend. During these visits, Bair would often tickle and play with his children in his bedroom. However, on three to five occasions during the time in which Bair lived in Layton, the horseplay progressed to abuse. On each occasion, Son and Sister would leave the room to engage in other activities and Bair would tell Daughter to stay so he could “ ‘love [her] up.’ ” He used that phrase each time and did not use it in any other context with Daughter. “Loving her up” consisted of thirty- to forty-five-minute sessions during which Bair would kiss Daughter on the lips, insert his tongue into her mouth, and put his hand under her clothing to rub her nipples, vaginal area, clitoris, and buttocks. On one occasion, Bair inserted his finger into Daughter's vagina. During these sessions, Bair would “tell [Daughter] that [she] was pretty and that [Sister] would always be jealous of [her] because [she] would always be prettier than her,” and he “would tell [Daughter] that [she] was his best friend and ask[ her] if [she] liked it.” On the last episode of abuse, Bair “slowed down” what he was doing, “stopped [,] ... sat up on the bed,” told Daughter “to not tell anybody because it was [their] little secret” and “it was wrong,” and then left the room.

¶ 3 At one point after Daughter was abused and before she reported the abuse, Mother had a disturbing dream that prompted her to ask Daughter if Bair “had ever touched [her] inappropriately.” Daughter responded in the negative, explaining at trial that she “should have told [Mother] then” but did not because she did not want to hurt Bair. Daughter did not disclose the abuse to anyone until she was in sixth grade, when she told Sister. Sister “got really upset” and asked Daughter not to tell Mother. Daughter refrained from telling Mother until July 2007, when Daughter felt like she “couldn't deal with it anymore” and “needed help.” Talking with people in an online abuse forum where individuals shared their personal experiences with abuse encouraged Daughter to report the abuse. Daughter also reported the abuse out of concern for Sister and a stepsister who was living with Bair at the time of reporting.

¶ 4 Daughter and Sister were each interviewed at the Children's Justice Center (CJC). One of the investigators who interviewed them (the Detective) also interviewed Bair. Subsequently, an Information was filed charging Bair with two counts of aggravated sexual abuse of a child. Bair's trial counsel conditionally waived the preliminary hearing, and Bair was bound over on the charges as they were set forth in the Information.²

¶ 5 A jury trial followed. Daughter testified at trial and mentioned that she had gone through counseling in the time between her initial reporting and the trial and that the counseling allowed her to “get some more memories back.” Daughter testified that during the therapy sessions she would “lay down on [a] couch and [the therapist] would just turn the lights down and ... would just talk to [her] about the memories that [she] already had,” prompting her to think “back as hard as [she] could.” Mother's testimony also indicated that Daughter had attempted hypnosis to “see if there were any other issues that hadn't already been discussed” but that it was unsuccessful.

¶ 6 Over Bair's objections on relevance and prejudice grounds, the State also introduced portions of the separation letter. The State used the letter as evidence of Bair's intent and to rebut Bair's defense that Daughter had fabricated the allegations. The State argued that the statements in the letter regarding Bair's addiction to the “touchy/feely” aspects of sex are consistent with Daughter's testimony describing the abuse as involving acts that comprised the “touchy/feely” aspects of sex. The State also asserted that because Daughter had no knowledge of Bair's letter before reporting her abuse, Bair's defense that Daughter fabricated her allegations is not believable in light of the otherwise inexplicable consistencies between the letter and Daughter's allegations. Additionally, the State used the letter to demonstrate that Bair's intent in abusing Daughter was to satisfy his addiction to the “touchy/feely” aspects of sex that he admittedly was having difficulty controlling not long before Daughter was abused.

¶ 7 The Detective also testified at trial. He testified that during his interview with Bair, Bair described Daughter as taking on a mature, motherly role after the divorce and stated that he felt like he was “able to talk to her.” The Detective testified that Bair also “talked about cuddling with her [, l]oving her up.” He testified that he confronted Bair with the phrase “loving up,” explaining that Daughter used the same term to describe the abuse. According to the Detective's testimony, Bair explained that he used the phrase to mean “hugging and kissing, teasing, [and] running around.” The Detective also testified that when he asked Bair if he had sexually abused Daughter, Bair stated that he “ ‘didn't have an interest in children’ ” and did not “ ‘have much of an interest with [Daughter] that way,’ ” and that he “hesitate[d]” before stating, “ ‘I mean, no interest in children.’ ” The Detective testified that Bair's response to his follow-up question for clarification was, “ ‘I have no interest in children.’ ” The Detective further testified that Bair tried to deflect the interview questions and that Bair's denials were “flat” and “emotionless.” Flat and emotionless responses, the Detective testified, were atypical. Additionally, the Detective testified that “[b]ased on the probably hundreds of [abuse] cases [he has] investigated, it's not uncommon for a victim not to disclose initially.” He explained that this can be the case even when a victim has been given several opportunities to disclose and that “it's a very common thing in sexual abuse of children to not make an immediate or even a close to immediate disclosure, and it certainly is not uncommon to be given the opportunity to disclose and not disclose.”

¶ 8 Bair was ultimately found guilty of both counts of aggravated sexual abuse of a child, a first degree felony, and sentenced to two concurrent prison terms of five years to life. Bair moved this court for a temporary remand under rule 23B of the Utah Rules of Appellate Procedure, raising several arguments as to why his trial counsel was ineffective. The rule 23B motion was granted in part on four specific issues:

(1) whether [trial counsel] was ineffective for failing to call [three specific individuals as witnesses]; (2) whether [trial counsel] was ineffective for failing to call an expert witness to rebut the argument that [Bair]'s admission that he had a sex addiction established or supported the requisite intent to sexually abuse a child; (3) whether [trial counsel] was ineffective for failing to argue that Bair did not qualify as a ‘natural parent’ under the aggravated abuse of a child statute; and (4) whether [trial counsel] was ineffective for failing to argue that [Daughter]'s testimony was inadmissible because it had been hypnotically enhanced.

The trial court ruled on those four issues, concluding that trial counsel did not perform deficiently and that, in any event, any deficient performance was not prejudicial.

ISSUES AND STANDARDS OF REVIEW

¶ 9 As a preliminary matter, Bair asserts that where his arguments are not preserved, we should nonetheless review his claims, applying the doctrines of plain error, ineffective assistance of counsel, and exceptional circumstances.³ Where applicable, we apply these doctrines to Bair's arguments and address our application of them in the standards of review outlined below for each issue presented.

¶ 10 Bair presents several arguments on appeal. First, Bair argues that a new trial is warranted because portions of the separation letter were erroneously admitted into evidence and because the State's arguments surrounding the letter amounted to prosecutorial misconduct. “We review a trial court's decision to admit evidence under rule 404(b) [of the Utah Rules of Evidence] for an abuse of discretion.” State v. Ferguson, 2011 UT App 77, ¶ 10, 250 P.3d 89, cert. denied, 262 P.3d 1187 (Utah 2011). Additionally, “[i]n determining whether a given statement constitutes prosecutorial misconduct, the statement must be viewed in light of the totality of the evidence presented at trial.” State v. Longshaw, 961 P.2d 925, 927 (Utah Ct.App.1998) (internal quotation marks omitted). “[B]ecause the trial court...