State v. Baker

Decision Date30 July 1998
Docket NumberNo. 911650-CA,911650-CA
Parties348 Utah Adv. Rep. 30 STATE of Utah, Plaintiff and Appellee, v. Mark Joseph BAKER, Defendant and Appellant.
CourtUtah Court of Appeals

Robert K. Heineman, Salt Lake City, for Appellant.

Jan Graham and J. Frederic Voros, Salt Lake City, for Appellee.

Before WILKINS, Associate P.J., and BENCH and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

This is the second appearance of defendant Mark Joseph Baker before this court appealing his convictions for rape of a child, a first degree felony, in violation of Utah Code Ann. § 76-5-402.1 (1990), and sodomy on a child, a first degree felony, in violation of Utah Code Ann. § 76-5-403.1 (1990). Defendant claims numerous errors by the trial court, as well as ineffective assistance of counsel. We affirm.

BACKGROUND 1

Between July and October, 1987, defendant was married to C.P. The couple lived in Salt Lake County with C.P.'s three sons and her daughter, H.H. H.H. was five or six years old at the time.

During that period, C.P. worked nights as a bartender and defendant watched her children while she was gone. Although the boys often slept outside in a backyard tent, defendant never allowed H.H. to sleep outside with them.

Numerous times while the boys were outside, defendant went into H.H.'s room, undressed himself, and told H.H. to put on her mother's nightgown. After then tying H.H.'s hands and feet and placing a bandanna in her mouth, defendant had vaginal or anal intercourse with her. At times, he also forced H.H. to perform oral sex.

Defendant was charged with rape and sodomy of a child, and a two day trial began on May 29, 1991. In his opening argument, defense counsel conceded that H.H. had been sexually abused. The only disputed issue was whether defendant was the perpetrator of that abuse. The State produced evidence that H.H. had identified the perpetrator as her stepfather, "Mark," who had curly hair and "fuzz" on his face, that H.H. never deviated from that identification, and that, in fact, defendant did have facial hair during the time he lived with C.P. and her family. 2 The State also produced evidence that defendant's sexual activities with C.P. included binding her in the same manner described by H.H. Finally, the State produced evidence that, in 1990, H.H. tested positive for chlamydia in both the vagina and the rectum. The jury returned guilty verdicts on both counts. The court sentenced defendant to two concurrent terms of five years to life, each with a minimum mandatory term of fifteen years.

Defendant filed an appeal on June 28, 1991. On November 2, 1994, this court reversed defendant's convictions, finding prejudicial error in the trial court's refusal to dismiss a juror for cause. See State v. Baker, 884 P.2d 1280, 1286 (Utah Ct.App.1994), cert. granted, 892 P.2d 13 (Utah 1995). On March 21, 1997, the supreme court reversed this court's decision, holding defendant had failed to preserve his juror claim by not using one of his peremptory challenges to remove the juror. See State v. Baker, 935 P.2d 503, 510 (Utah 1997). The supreme court then remanded the case to this court for consideration of defendant's remaining claims. 3

ISSUES

Defendant raises several issues on appeal. First, he argues that the trial court improperly admitted expert testimony premised on the victim's credibility in violation of State v. Rimmasch, 775 P.2d 388 (Utah 1989). Second, defendant claims the trial court improperly allowed the State to invoke sympathy for H.H. in its closing argument. Third, defendant asserts that the State improperly elicited testimony commenting on defendant's invocation of his right to remain silent. Fourth, defendant claims he was denied effective assistance of counsel at trial. Fifth, defendant claims there was insufficient evidence to support his convictions. Finally, defendant argues the trial court abused its discretion in sentencing him to minimum mandatory terms of fifteen years on each count.

ANALYSIS
Expert Testimony

Defendant claims the trial court erred in allowing the State's primary expert to comment on H.H.'s credibility, in violation of State v. Rimmasch, 775 P.2d 388 (Utah 1989). Because defendant failed to raise this issue below, we review his claim for plain error. Under the plain error doctrine, defendant "must show ...: (i) An error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for [defendant]." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).

The State's primary expert on child sexual abuse was Dr. Karen Hansen, a pediatrician at Primary Children's Medical Center, who examined H.H. on December 20, 1990. Hansen both interviewed H.H. and performed a physical examination of her. The examination produced "no findings that would have been corroborative of sexual abuse"; however, H.H. did test positive for chlamydia. After meeting with H.H., Hansen concluded that H.H. had been sexually abused. At trial, Hansen testified: "[T]he basis was the fact about the way [H.H.] told her story with explicit details, what, you know, she had to say. And then the [c]hlamydia cultures were very convincing about the sexual abuse."

In Rimmasch, our supreme court held that, absent foundation demonstrating the "inherent reliability" of the scientific basis for an expert's conclusion that a particular person was telling the truth on a particular occasion, an expert's opinion "based largely upon ... the expert['s] subjective appraisals of the [victim's] truthfulness during interviews" is not admissible. Rimmasch, 775 P.2d at 393, 406-07; see also State v. Bates, 784 P.2d 1126, 1129 (Utah 1989) (finding error in admitting expert's bolstering testimony where "State did not qualify her as an expert on discerning truth"); State v. Ramsey, 782 P.2d 480, 485 (Utah 1989) (same).

Under Rimmasch, the trial court's admission of Hansen's bolstering testimony was obvious error. However, Hansen's testimony went only to whether H.H. had in fact been sexually abused. 4 Defense counsel had already conceded that fact in opening argument. Thus, Hansen's testimony was essentially cumulative. Because of this, we do not believe that "absent the error, there is a reasonable likelihood of a more favorable outcome" for defendant. Dunn, 850 P.2d at 1208-09. We conclude, then, that the admission of the testimony was not plain error.

Closing Argument

Defendant's second claim is that the trial court improperly allowed the State to invoke juror sympathy for H.H. in its closing argument. Because defendant did not object, we review the State's comments for plain error. See State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993).

"Counsel is afforded considerable latitude in closing argument to the jury and may fully recount the evidence adduced and the reasonable inferences to be drawn therefrom." State v. Hopkins, 782 P.2d 475, 478 (Utah 1989). Furthermore, "[c]ourts generally recognize that, during closing arguments, a prosecutor may comment on the credibility of witnesses." State v. Cummins, 839 P.2d 848, 854 n. 15 (Utah Ct.App.1992) (citations omitted), cert. denied, 853 P.2d 897 (Utah 1993); cf. State v. Tillman, 750 P.2d 546, 554 (Utah 1987) (suggesting that bolstering witness is not improper in stating "it is clear that [the remarks] were intended to bolster [State witness's] credibility and were not intended to contrast her decision to testify with defendant's choice to remain silent."). 5

The standard to be applied in determining whether improper argument merits reversal is twofold: (1) was the argument directed toward matters the jury would not be justified in considering, and (2) was the error substantial and prejudicial such that in its absence there is a reasonable likelihood of a more favorable result for the defendant?

Hopkins, 782 P.2d at 478; see also Tillman, 750 P.2d at 555. In applying that standard, " 'the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.' " Hopkins 782 P.2d at 480 (quoting United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985)); see also State v. Andreason, 718 P.2d 400, 402-03 (Utah 1986) (holding that in determining prejudice from improper argument, "we consider the entire record and circumstances of the case.").

The State's closing argument in this case, including rebuttal, spans twenty-nine pages of trial transcript. Defendant takes issue with essentially six paragraphs. 6 A review of the State's argument as a whole indicates that it consisted primarily of a review of the evidence. That review focused not only on H.H.'s vulnerability at the time of the sexual abuse, but also on evidence corroborating H.H.'s story, as well as evidence explaining why H.H.'s testimony might at times have been inconsistent. All of this is proper closing argument. So too is the State's focusing on this evidence to support a conclusion that H.H. was telling the truth.

To the extent some of the State's comments exceeded the bounds of permissible argument, we do not believe they rose to the level of obvious error. Most of the comments challenged by defendant are in fact ambiguous as to whether they urge the jury to feel sympathy for the victim or merely urge the jury to believe the victim based on the evidence. This ambiguity, combined with the fact that there was no settled case law in this state directly addressing comments evoking victim sympathy, indicates the inappropriateness of applying the plain error doctrine to these comments. See State v. Ross, 951 P.2d 236, 239 (Utah Ct.App.1997) ("Utah courts have repeatedly held that a trial court's error is not plain where there is no settled appellate law to guide the trial court.").

Finally, the evidence against defendant in this case was considerable. See Andreason, 718 P.2d at...

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