State v. Burke
| Decision Date | 26 May 2011 |
| Docket Number | No. 20080941–CA.,20080941–CA. |
| Citation | 683 Utah Adv. Rep. 8,2011 UT App 168,256 P.3d 1102 |
| Parties | STATE of Utah, Plaintiff and Appellee,v.Ryan David BURKE, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Joseph Jardine, Salt Lake City, for Appellant.Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.Before Judges DAVIS, McHUGH, and ROTH.
¶ 1 Defendant Ryan David Burke appeals his convictions for aggravated sexual abuse of a child, see Utah Code Ann. § 76–5–404.1 (2008), dealing in material harmful to a minor, see id. § 76–10–1206 (Supp. 2007), and forcible sexual abuse, see id. § 76–5–404 (Supp. 2010), alleging that numerous errors occurred at trial. We affirm.
¶ 2 On Saturday, September 15, 2007, Burke attended a ten-year high school reunion with his former classmate (Father). Although Burke and Father had not been as close over the past few years, they had been friends since middle school and throughout high school and made arrangements to attend the reunion together. The reunion was being held at Snowbird Ski Resort, and Burke was to meet Father at his home in Salt Lake City then ride to the reunion with him. Father's wife (Mother) was out of town that evening, so Father arranged for their four-year-old daughter (Child) to be cared for by her grandfather until Father returned home from the reunion later that night.
¶ 3 Originally, Father had volunteered to be the designated driver for the evening. But at the reunion he decided to drink, so Father and Burke agreed that they would spend the night at Snowbird rather than drive back down the canyon. Father made arrangements for both of them to stay with some other friends who had rented rooms at the reunion site. Father also called his twenty-year-old sister (Aunt), who frequently tended Child, and arranged for her to go to his house and watch Child overnight. At around 11:00 p.m., Child's grandfather dropped Child off at Father's home, and Aunt put Child to bed then went to the master bedroom to do homework.
¶ 4 Sometime after midnight, Burke decided that he did not want to stay at the reunion site and caught a ride back to Father's house with another former classmate (Boyfriend) and the classmate's girlfriend (Girlfriend). During the half-hour car ride down the canyon, Girlfriend rode in the front passenger seat while Burke rode in the back seat. Earlier that evening, Burke had asked Girlfriend for her phone number and she had refused, telling Burke that she and Boyfriend were dating. But during the ride down the canyon, Burke persisted in stroking and “caressing [her] arm” as Girlfriend rested it on the center console of the car. Girlfriend would move her arm in an attempt to stop the touching, but whenever she rested it on the console again, Burke would resume the caressing. Girlfriend described the touching as “uncomfortable” and “inappropriate” because she was sitting right next to Boyfriend. But not wanting to make the situation more awkward, Girlfriend did not tell Boyfriend about the touching and did not verbally tell Burke to stop.
¶ 5 Boyfriend dropped Burke off at Father's house where he had left his car and where Aunt was now tending Child. Rather than driving home, however, Burke entered Father's home, startling Aunt. Burke was “obviously angry” and “upset” with Father because Father had remained at the reunion site. Burke complained to Aunt that if Father had not changed his plans, he “could have been at home in bed with his girlfriend.” Nevertheless, Burke told Aunt that Father had given him permission to stay the night because he had been drinking and could not drive himself home. In fact, Father had not given Burke permission to stay at his house, but when Aunt attempted to confirm this with Father, he did not answer his phone. Aunt then called Mother, who said that “[she] guess[ed]” it would be okay if he stayed, although she was uncomfortable with the situation. Aunt told Burke that he could sleep on a couch downstairs in the basement.
¶ 6 Aunt returned to her homework in the master bedroom, but Burke repeatedly interrupted her studies. About fifteen minutes after he arrived, Burke told Aunt that he was hungry and asked her to come into the kitchen and help him make something to eat. Aunt assisted Burke in the kitchen for about ten or fifteen minutes while Burke heated up some soup and continued to complain about Father's decision to stay at the reunion. Aunt then left Burke in the kitchen and returned to her homework. After another fifteen minutes, Burke again interrupted Aunt, telling her that “he couldn't figure out how to work the TV and needed help.” Aunt helped Burke with the television, which was located in the basement where Burke would be sleeping. She then handed him the remote control and began to go back upstairs. Burke, however, stopped her as she was leaving and asked, Aunt replied that she “still ha[d] a lot of homework to do, but [she'd] stay for a minute.”
¶ 7 Burke lay lengthwise across the couch while Aunt sat on the couch, near his feet. Burke continued to complain about Father's decision to stay at the reunion and how he “could be home sleeping with his girlfriend.” As the two talked, the conversation turned to their families: Aunt mentioned that her parents were going through a divorce, and Burke discussed a similar situation with his parents. Aunt was not upset by the discussion, but Burke sat up and began rubbing her back in an ostensibly consoling manner, saying, “ ” Burke had been rubbing her back for about “five seconds, maybe” when—out of nowhere—“[h]e ... put [both his hands] up [her] shirt ... and groped [her],” touching both of her bare breasts and her nipples.2 Aunt had not been flirting with Burke and had not given him any indication of romantic interest. Rather, Aunt considered her brother's friends to be “like [her] big brothers”—including Burke, whom she had known since she was a little girl. She was “shocked” by Burke's actions and thought that “it was weird that one of [her] brother's friends would touch [her] like that.” Aunt immediately pulled Burke's hands out from under her shirt and demanded, “What are you doing?” But Burke laid down on the couch then pulled Aunt “on top of him and started trying to kiss [her]” while saying, “ ‘Come on, let's make out.’ ” Aunt, “shocked” and “disgusted” by Burke's actions, pulled away and fled upstairs. Burke called after her, “ ” Aunt shut herself and Child in the upstairs master bedroom. Aunt then sent a series of text messages to Mother, telling her what had happened.
¶ 8 Burke stayed in the house throughout the night. On Sunday, September 16, he ordered four Pay–Per–View and On–Demand pornographic movies from Father and Mother's cable service at 1:30 a.m., 3:00 a.m., 3:30 a.m., and 8:20 a.m. And between the hours of 2:40 a.m. and 3:20 a.m., Burke accessed several pornographic websites on Mother's computer.3
¶ 9 Sometime during the morning hours of Sunday, September 16, Child woke up, went downstairs, and walked in on Burke as he was watching what she described as “a grownup movie.” The “grownup movie” portrayed acts of oral sex that Child described as “a boy kissing a girl's butt, and a girl ... [s]ucking a boy's penis.” 4 Burke was apparently masturbating to the pornographic movie and told Child that he had an “owie” on his penis. He then held Child's hand “very tightly” and made her touch his penis while the “grownup movie” was still playing.
¶ 10 When Aunt awoke that morning, she realized that Child was no longer in the bedroom. Aunt began searching for Child and, as she called out Child's name, Burke came up the stairs with Child on his shoulders. Aunt took Child away from Burke and told him to get out. Burke did not look at Aunt, kept his head down, and said nothing. He then left the house.
¶ 11 Later that day, while at a friend's house with Father and Child, Aunt recounted the events of the previous night. The friend's wife asked if they had questioned Child about whether Burke had done anything to her, given what he had done to Aunt. That possibility had not occurred to Aunt, so she asked Child if Burke had touched her anywhere. Child responded that Burke had “touched [her] hands.” 5
¶ 12 Mother returned home later that same day. On the following Wednesday morning—three days later—Child got into bed with Mother, crawled under the covers, and started kissing Mother in her pubic region, as if simulating oral sex. Mother pulled Child up from under the covers and asked her what she was doing; Child had never before exhibited such behavior. Child then told Mother that Burke had told her that he had an “ouch” on his penis and that he had grabbed her arm and made her touch his penis. Mother told Father about her conversation with Child. Father also questioned Child, who told him that Burke had made her touch his penis. Mother immediately reported the incident to the police. On September 26, Child was interviewed at the Children's Justice Center (CJC), where her interview was videotaped. Child told the interviewer that Burke had been “watching a grown up movie with [her]” downstairs “in [her] house,” and that in the movie a “girl [was] sucking the boy's penis and ... a boy [was] kissing the girl's coco”—a word Child customarily uses for “vagina.” 6 Child also said repeatedly that Burke had made her touch his penis, specifically saying that “[h]e touched me on his penis.”
¶ 13 When questioned by police about what had occurred in Father's house that night, Burke admitted to ordering pornography through Father and Mother's cable service. When asked about Child also having viewed that pornography, Burke suggested that Child may have come downstairs and seen him watching pornography, although he was unaware of her presence. Burke also...
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