State v. Bragg

• Decision Date: 29 November 2013
• Docket Number: No. 20120304–CA.,20120304–CA.
• Citation: 317 P.3d 452,748 Utah Adv. Rep. 37
• Parties: STATE of Utah, Plaintiff and Appellee, v. Troy BRAGG, Defendant and Appellant.
• Court: Utah Court of Appeals

317 P.3d 452

748 Utah Adv. Rep. 37

STATE of Utah, Plaintiff and Appellee,

v.Troy BRAGG, Defendant and Appellant.

No. 20120304–CA.

Court of Appeals of Utah.

Nov. 29, 2013.

Colleen K. Coebergh, for Appellant.

John E. Swallow and Kris C. Leonard, Salt Lake City, for Appellee.

Opinion

BILLINGS, Senior Judge:

¶ 1 Troy Bragg appeals from his convictions on three counts of aggravated sexual abuse of a child, each a first degree felony, seeUtah Code Ann. § 76–5–404.1 (LexisNexis Supp.2013). For the reasons stated herein, we reject Bragg's arguments on appeal and affirm his convictions.

BACKGROUND

¶ 2 In April 2009, Bragg was staying at a motel in Salt Lake City when he met C.M. (Mother) and her five boys, including four-year-old B.M. Bragg developed a rapport with the family, and over the next few weeks he and Mother kept in contact. Soon thereafter, Mother and the boys went to visit Bragg at his home in Vernal. Bragg asked them to move in with him, and Mother agreed.

¶ 3 Around the time that Mother and the boys moved into Bragg's house, Bragg disclosed to Mother that he was on the sex offender registry for abusing his own daughter (Daughter) when she was six or seven years old. He claimed that the abuse had only happened once and attributed the offense in large measure to his alcohol use. Mother spoke with Daughter, who was in her twenties by then, about the abuse. Although Daughter confirmed that the abuse had occurred, Mother nevertheless chose to move herself and the boys into Bragg's home.

¶ 4 The two adults initially shared a bedroom, but no romantic relationship developed, and Bragg eventually began sleeping on a couch in the living room. While the relationship between Bragg and Mother failed to flourish, Bragg and B.M. became increasingly close. Bragg began spending his leisure time alone with B.M. and buying him gifts. Bragg would often sleep with B.M., and B.M. began calling Bragg “Dad.”

¶ 5 Over the next year, B.M. informed Mother of several disturbing incidents involving Bragg. B.M. told Mother that while he and Bragg were alone on a camping trip, Bragg had put his hand inside B.M.'s underwear and touched his penis. Bragg denied the allegation when Mother confronted him but said he might have accidentally rubbed against B.M. while he was sleeping. B.M. also told Mother that Bragg looked at pornography on his computer that included men performing oral sex on boys. When Mother confronted Bragg about the pornography, Bragg claimed that B.M. had seen “pop-ups” that had unexpectedly appeared on his computer and that he had tried to get rid of.

¶ 6 About a year after Mother and the boys moved in with Bragg, Mother took three of the boys to Salt Lake City for medical appointments. She left one of the remaining boys with Daughter but, at Bragg's request, left B.M. alone with Bragg. The next day, Mother became worried when she could not contact Bragg or B.M. When she finally reached Bragg a few days later, Bragg was evasive about where he and B.M. had been. Mother told Bragg that she was coming to pick up B.M. at Bragg's job site and that she would go to the police if B.M. was not there. When Mother successfully retrieved B.M., he came outside to her car with several new items; Bragg would not come outside.

¶ 7 The next day, B.M. told Mother that Bragg had been “rubbing lotion” on him. Mother later testified that B.M. then told her that Bragg “had told him that when [Bragg] was a young boy, he liked to put lotion on his finger and then gestured sticking it in his bottom.” Mother told Daughter about B.M.'s disclosures. By this time, Daughter was also aware of B.M.'s oldest brother's suspicions that Bragg was molesting B.M. The thirteen-year-old brother had told Daughter that he had witnessed Bragg placing his penis against B.M.'s bottom and “humping” him. Daughter contacted the police.

¶ 8 After the police had been notified, Bragg told Mother on one occasion that B.M. would frequently act out sexually after showering and that during B.M.'s last visit, Bragg had rubbed lotion on B.M. to calm him down. On another occasion, Bragg apologized to Mother and stated that he did not mean for things to happen or to go as far as they did. Bragg told Mother that “no amount of prison time would stop him from getting out and doing it again” and that he had undergone therapy and counseling but that it had not helped.

¶ 9 When the police completed their investigation, which included an interview with B.M. and his oldest brother, the State charged Bragg with three counts of aggravated sexual abuse of a child. The three counts were based on allegations that Bragg had showed B.M. how to masturbate by rubbing his penis with lotion and putting his finger in his anus; that Bragg had engaged in what B.M. called “pee-pee wars,” which involved Bragg and B.M. rubbing their penises together; and that Bragg had “humped” B.M. as witnessed by his oldest brother.

¶ 10 After a hearing conducted on the first day of trial but outside the presence of the jury, the district court ruled that Daughter could testify about her own sexual abuse by Bragg. The district court also ruled that testimony pertaining to Bragg's pornography use and his inadvertent touching of B.M. while the two were camping was admissible because it was alleged in the criminal information against Bragg. The district court also granted the State's pre-trial motion to admit the taped interviews of B.M. and his oldest brother.

¶ 11 After a three-day trial, the jury convicted Bragg on all three counts. The district court sentenced Bragg to prison terms of fifteen years to life for each conviction, with two of the terms to run concurrently with each other and the third term to be served consecutively to the first two. Bragg timely appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 12 First, Bragg argues that he received ineffective assistance of counsel at his trial due to multiple alleged shortcomings by his trial counsel. We evaluate ineffective assistance of counsel claims raised for the first time on direct appeal to determine if relief is warranted as a matter of law. State v. Phillips, 2012 UT App 286, ¶ 11, 288 P.3d 310 (“[W]e must decide whether defendant was deprived of the effective assistance of counsel as a matter of law.”). Bragg also seeks a remand to the district court for the entry of factual findings he claims are necessary for this court's resolution of his ineffective assistance of counsel claims. See generallyUtah R.App. P. 23B. To obtain a rule 23B remand, a criminal defendant must present affidavit evidence of nonspeculative facts not fully appearing in the record that demonstrate both deficient performance by counsel and prejudice to the defendant. State v. Johnston, 2000 UT App 290, ¶¶ 7–15, 13 P.3d 175 (per curiam).

¶ 13 Second, Bragg argues that he is entitled to a new trial due to prosecutorial misconduct. “We review a trial court's handling of claimed prosecutorial misconduct for an abuse of discretion.” State v. King, 2010 UT App 396, ¶ 13, 248 P.3d 984.

¶ 14 Third, Bragg argues that the district court committed plain error when it allowed testimony that impermissibly bolstered B.M.'s credibility.² “[W]e grant a trial court broad discretion to admit or exclude evidence and will disturb its ruling only for abuse of discretion....” State v. Gallup, 2011 UT App 422, ¶ 12, 267 P.3d 289 (citation and internal quotation marks omitted).

¶ 15 Fourth, Bragg argues that the district court committed plain error when it failed to bifurcate his trial. Bragg argues that the aggravating factor of his prior sexual abuse conviction should have been presented to the jury only after it had reached a determination that he had committed one or more of the alleged acts of abuse of B.M. We review the district court's failure to bifurcate a criminal trial for an abuse of discretion. See State v. Reed, 2000 UT 68, ¶ 34, 8 P.3d 1025.

¶ 16 Fifth, Bragg argues that the district court committed plain error in admitting evidence of his prior acts under rules 404(b) and 404(c) of the Utah Rules of Evidence. We review the district court's evidentiary rulings for an abuse of discretion. See Gallup, 2011 UT App 422, ¶ 12, 267 P.3d 289;see also State v. Pullman, 2013 UT App 168, ¶ 7, 306 P.3d 827 (“[W]e review a trial court's decision to admit evidence under rule 404(b) of the Utah Rules of Evidence under an abuse of discretion standard.”). Bragg further argues that the district court's instructions to the jury on rules 404(b) and 404(c) were incorrect and constituted plain error. “ ‘Claims of erroneous jury instructions present questions of law that we review for correctness.’ ” State v. Loeffel, 2013 UT App 85, ¶ 7, 300 P.3d 336 (quoting State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250).

¶ 17 Sixth, Bragg argues that his due process rights were violated due to his having inadequate notice of the charged conduct throughout the proceedings, thus entitling him to a new trial. A claim of inadequate notice presents a question of law that we review for correctness. State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991).

¶ 18 Finally, Bragg argues that his convictions should be reversed under the doctrine of cumulative error. “Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence that a fair trial was had.” State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993).

ANALYSIS

I. Ineffective Assistance of Counsel

¶ 19 Bragg argues that his trial counsel provided him with ineffective assistance of counsel based on multiple allegations of counsel's deficient performance at trial. These allegations include counsel's failure to respond to the State's pretrial motion to admit prior act evidence under rule 404 of the Utah Rules of Evidence, failure to respond to the State's motion to admit the recorded testimony of B.M. and his older brother pursuant to rule 15.5 of the Utah Rules of Criminal Procedure, and “opening the door” to rebuttal...