State v. Boyer

• Citation: 460 P.3d 569
• Decision Date: 13 February 2020
• Docket Number: No. 20170423-CA,20170423-CA
• Parties: STATE of Utah, Appellee, v. Mark BOYER, Appellant.
• Court: Court of Appeals of Utah

460 P.3d 569

STATE of Utah, Appellee,

v.Mark BOYER, Appellant.

No. 20170423-CA

Court of Appeals of Utah.

Filed February 13, 2020

Elizabeth Hunt, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Appellee

Troy L. Booher and Freyja Johnson, Salt Lake City, Attorneys for Amicus Curiae Victim V.M.

Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.

Opinion

HAGEN, Judge:

¶1 A jury convicted Mark Boyer of aggravated sexual abuse of a child, rape of a child, and sodomy upon a child. He now appeals, arguing that the district court abused its discretion in denying his motion for a new trial based on ineffective assistance of counsel. He also argues that the district court erred in denying his motions to recuse and to reconstruct the record. Because we are unpersuaded that trial counsel provided ineffective assistance or that the district court erred in its evidentiary and recusal rulings, we affirm.

BACKGROUND¹

¶2 Boyer appeals his convictions resulting from an investigation and prosecution that together spanned more than three years. In early 2013, Boyer’s ex-wife (the ex-wife) contacted the Utah Division of Child and Family Services (DCFS) and reported that, years earlier when she and Boyer were still married, Boyer had sexually abused their son’s now fourteen-year-old friend (the victim). In response to this report, a detective from Unified Police Department (the detective) interviewed the victim at the Children’s Justice Center (the CJC). The ex-wife drove the victim to the CJC, and the victim provided the detective with a written account of Boyer’s abuse, which the victim had prepared prior to the interview at the suggestion of the ex-wife, who expressed concern that the victim would struggle to talk about the abuse.

¶3 During the interview, the victim disclosed to the detective that Boyer had begun abusing her when she was seven years old and that the most recent incident of abuse occurred when she was nine. Each incident occurred at Boyer’s home when the victim was visiting Boyer’s son. The victim described at least seven separate incidents of sexual abuse in graphic detail. Because the details of Boyer’s crimes are not relevant to the issues on appeal, we do not repeat them here.

¶4 The State subsequently charged Boyer with four counts of aggravated sexual abuse of a child, four counts of rape of a child, and two counts of sodomy upon a child. The victim testified at a preliminary hearing in May 2013, and Boyer was bound over on all charges except one count of rape of a child.

¶5 Before Boyer’s first trial, trial counsel made numerous pretrial motions, including a motion opposing the State’s request to photograph Boyer’s genitals, two motions to admit evidence of the victim’s prior allegations of sexual abuse pursuant to rule 412 of the Utah Rules of Evidence, a motion to produce the victim’s medical records from 2005 to 2009, a motion to exclude the State’s expert testimony, and a motion to continue to allow more time to investigate rule 412 evidence and the State’s expert. Trial counsel also negotiated a stipulation with the State allowing for the in camera review of the victim’s medical and mental health records. After the in camera review, the district court determined that the records contained no exculpatory material and shredded the documents.

¶6 The case proceeded to trial in May 2016. The State presented the testimony of the victim’s aunt—her legal guardian at the time of trial—as well as the testimony of the victim. The victim testified to the details of each of the offenses and described her relationship with Boyer’s family and the difficulties she faced since disclosing the abuse. During direct examination by the State, the victim testified that she decided to tell the ex-wife about Boyer’s abuse because she overheard a conversation about Boyer and a "lady" that made her suspect that she "wasn’t the only one." After the victim’s direct examination, trial counsel asked for a recess and moved for a mistrial because the victim’s statement constituted inadmissible and prejudicial evidence that could lead the jury to infer that Boyer had committed similar crimes against other victims. The district court granted Boyer’s motion and declared a mistrial.

¶7 The second trial took place a short time later. The victim again testified about the details of Boyer’s abuse and her struggles since. The State admitted photos of Boyer’s genitals, and during cross-examination, trial counsel questioned the victim about her claim to investigators that Boyer had one or two moles near his penis. Trial counsel also questioned the victim about the ex-wife’s suggestion that she write down the abuse allegations before her CJC interview and the ex-wife’s influence in the victim’s life. Among other things, the victim admitted on cross-examination that she had believed that she had genital herpes

because the ex-wife told the victim that Boyer had genital herpes and told her about the symptoms.

¶8 The ex-wife testified that the victim repeatedly told her that she had something to tell her before the victim ultimately disclosed Boyer’s abuse. Although the ex-wife did not initially believe the victim, she eventually encouraged the victim to speak with the detective. The ex-wife explained that she suggested that the victim write down the allegations before her CJC interview because the victim had difficulty telling her story. The ex-wife also admitted that she told the victim that Boyer had genital herpes

.

¶9 During direct examination, the ex-wife testified that the victim disclosed that one of the incidents of abuse occurred on blue-and-white-striped sheets. Although she initially doubted the veracity of the victim’s allegations, the ex-wife later discovered that she and Boyer did have blue-and-white-striped sheets. She testified that upon her discovery, "I was floored. I was—it was just those things that just happen that made me more aware that she was telling the truth." Trial counsel objected to this statement, and the district court sustained the objection and struck the statement from the record. During cross-examination, trial counsel questioned the ex-wife about the sheets, her suggestion that the victim write down the allegations against Boyer, and her account of finding the victim crying on the floor of her bathroom during the time period of the abuse. After the ex-wife completed her testimony, trial counsel moved for a mistrial on the basis of her bolstering statement, which the court had stricken. The court denied the motion for a mistrial, determining that the statement was harmless, but offered to instruct the jury that it alone could determine the credibility of a witness. Trial counsel declined the instruction for fear of drawing further attention to the statement.

¶10 Following the denial of the motion for a mistrial, the State presented expert testimony from a psychiatrist specializing in sexual abuse cases. The State concluded its case with testimony from the nurse who conducted a physical examination of the victim following her CJC interview. The nurse testified that the victim’s exam was normal, but explained that ninety-five percent of the exams she conducts are normal.

¶11 After the State rested, the defense called the detective as its first witness. The detective testified about the extensive professional training he underwent to work with child victims and the nationally recognized protocol for interviewing suspected child sexual abuse victims. After the detective testified, the defense read into evidence a stipulation that the victim had informed the police "about a separate incident" in which another friend’s father touched her breasts. The stipulation indicated "that [the incident] only happened on one occasion," that the friend’s father has denied the allegation, and that "no charges have been filed against" the friend’s father.

¶12 Boyer testified last and denied the victim’s allegations. He testified that his divorce from the ex-wife had been acrimonious and that, shortly before the victim’s accusations, one of his sons sent him a photograph of the ex-wife apparently passed out on the kitchen floor after taking a sleeping pill and possibly consuming alcohol. Boyer believed that the victim’s allegations resulted from the ex-wife’s desire for retribution. To rebut this evidence, the State recalled the ex-wife, who testified that, while she did force Boyer out of their home, occasionally drank, and took Ambien

, her divorce from Boyer was otherwise amicable and there were no custody disputes.

¶13 In closing arguments, the defense argued that the ex-wife had indoctrinated the victim to make false allegations against Boyer so that the ex-wife could keep Boyer from seeing their sons. The defense further argued that the victim did not know that Boyer had genital herpes

until the ex-wife told her and never sought medical treatment for her supposed herpes outbreaks, did not mention the moles near Boyer’s penis in her initial interviews or until much later in the investigation when she described Boyer’s moles inaccurately, showed no physical signs of abuse, and accused another friend’s father of similar conduct yet no charges were filed. The defense also pointed out that the State’s expert had opined that consistency and rich detail in reports could be an indication of indoctrination.

¶14 After closing arguments, the jury found Boyer guilty on all counts. Boyer was later sentenced to two consecutive terms of fifteen years to life in prison for sodomy upon a child and for aggravated sexual abuse of a child, to run concurrently with the lesser sentences imposed for the remaining counts.

¶15 After sentencing, trial counsel withdrew and appellate counsel appeared on Boyer’s behalf.² Appellate counsel filed a motion for a new trial, arguing ineffective assistance of trial counsel, evidentiary errors, and prosecutorial misconduct....