State v. Burnside
| Decision Date | 10 November 2016 |
| Docket Number | Opinion No. 20140400–CA |
| Citation | 387 P.3d 570,2016 UT App 224 |
| Parties | State of Utah, Appellee, v. Donovan Heath Burnside, Appellant. |
| Court | Utah Court of Appeals |
Gregory N. Skabelund and Bryan Sidwell, Delta, Attorneys for Appellant.
Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee
¶1 Donovan Heath Burnside appeals his convictions on three counts of aggravated sexual abuse of a child, a first-degree felony, under Utah Code section 76–5–404.1(4). We affirm.
¶2 The victim (Child) lived with her Mother and Stepfather. Burnside, a friend of the family, lived intermittently in the household from approximately January 2009 through January 2011. In January 2011, Child told Stepfather that Burnside had touched Child's genital area. The day after this disclosure, Mother and Stepfather took Child to a doctor. After speaking with them about Child's disclosure, the doctor told them he was required to report the information to the authorities, which he did, and an investigation followed.
¶3 In the course of the investigation, a nurse practitioner at the Children's Justice Center (CJC) examined Child. Also, a CJC detective interviewed Child (the CJC Interview), which was recorded and later transcribed. During the CJC Interview, Child told the detective that Burnside had touched her genital area on multiple occasions.
¶4 The detective also separately interviewed Burnside. Burnside admitted during the interview to touching Child on three separate occasions, describing them as "inadvertent[ ]" or an "accident." Specifically, the detective asked Burnside, "where did you touch her?" Burnside responded by describing a time when Child had her hand in her pants, and after telling her "that she shouldn't have her hands in her pants like that," Burnside "pull[ed] [her hand] up." Burnside explained to the detective that his "hands or ... fingers or something might have touched something down there, but I don't think that." The detective then asked "[w]hat would [your fingers] have touched," to which Burnside responded that "[i]t was probably like her leg or something down there." Burnside explained that on these occasions he did not touch Child's vagina, but only "the top of her thighs," to which the detective responded "[a]nd the top of her thighs meaning between her pelvis and the top of her thighs?" Burnside responded, "Yes." In April 2011, the State charged Burnside with three counts of aggravated sexual abuse of a child. After multiple continuances, the case eventually went to trial in July 2013.
¶5 During voir dire the State asked the panel of potential jurors, "Are there any of you who have either been a victim or have ever been accused or do you have a close friend or family member, someone close to you, who has been a victim or has been accused of sexual abuse of a child?" Several panel members raised their hands. The trial court followed up by speaking with each responding panel member in chambers in the presence of the attorneys for both sides and the defendant. These in-chambers proceedings were not recorded. The trial court eventually excused six of these potential jurors for cause. After the six were replaced from the jury pool, the State asked an almost identical question, and three more potential jurors answered affirmatively and were then questioned off the record by the trial court in chambers, again with counsel for both sides present. Following this second round of questioning, the trial court then excused one more panel member for cause. The excused juror was replaced and the same process was repeated a third time, but with no further excusals.
¶6 At trial, the State called Child, who testified that Burnside touched her vaginal area under her clothing "more than one time" when Stepfather and Mother were out of the home. On cross-examination, Child was asked about the CJC Interview and whether or not certain statements she made during the CJC Interview were "truthful." The State also called Stepfather and Mother to testify. Each of their testimonies focused on changes they observed in Child's mood before and after January 2011, when Child disclosed the alleged abuse to Stepfather. Stepfather testified that prior to January 2011 Child had been "really happy," "excited to go to school," "doing really well [with her schoolwork]," and that she had only "infrequent" incidents of bed-wetting. He stated that after January 2011, however, her mood changed and, among other things, Child "went from [being] a really happy rambunctious kid to kind of subdued," became "physically violent" with her sibling, "did not want to go to school anymore," and "started wetting the bed every night again." Mother testified, as Stepfather had, that Child "was very happy and very spunky," but after her disclosure, Child began "having some problems with school" and became "feisty" and "really ornery" at home.
¶7 During cross-examination of Mother, Burnside's trial counsel asked a question about arguments in the home between her and Stepfather "over [Stepfather's] use of narcotics [and] marijuana." The State objected on relevance grounds and a bench unrecorded conference ensued. Following the bench conference, Burnside's counsel did not pursue the issue of Stepfather's drug use, but instead asked Mother a line of questions about Stepfather's "excessive drinking" during December 2010 and January 2011, about how during this same time Stepfather cut some of Child's toys "in half with a bandsaw" for disciplinary reasons, and inquired whether these events "would have affected [Child]." Mother agreed that they could have.
¶9 The State also called the nurse practitioner who initially examined Child at the CJC and the detective who conducted the CJC Interview. The nurse practitioner testified that, when any child is referred to the CJC, she "obtain [s] a medical history from the parents" before speaking with the child and "ask [s] [the child] if they know why they are [at the CJC]" before conducting a physical examination. The nurse practitioner testified that she initially asked Child questions to determine if Child knew why she was at the CJC and then "proceeded ... to talk about what a good touch is and what a bad touch is." When asked "if anybody ha[d] done any bad touches [to Child]," Child responded, "Yes, ... [Burnside] had," and then Child "pointed to her private area." When asked where the conduct had occurred, Child stated that it had happened in her bedroom or her sibling's bedroom on multiple occasions. The nurse practitioner testified that she physically examined Child, with Mother present, "from head to toe and checked her genital area" and that "[Child's] examination was normal." The nurse practitioner indicated, however, that such a finding would be "consistent" with Child's earlier statements. The detective testified about her investigation of Child's allegations against Burnside. During the detective's direct examination, the State played the CJC Interview in its entirety to the jury; Burnside objected only to the quality of the recording.
¶10 Burnside's counsel called three witnesses: Burnside's girlfriend at the time of Child's disclosure, Child's biological father, and Burnside himself. Burnside's former girlfriend testified about her relationship with Burnside, as well as Mother and Stepfather's lack of treatment for an ongoing condition that Child had in her genital area that resulted in what the family called "spicy pee." Specifically, the former girlfriend recounted that she had a conversation with Burnside and Mother in September 2010 about Child's medical condition and "how it's supposed to be taken care of" with "a cream [that Mother] was supposed to have for [Child]." She further testified that, in the "whole time" she knew Mother and Stepfather, she "never saw [the cream]" or "any medication" for the condition in the house. The former girlfriend also described her recollection of an encounter where Mother and Stepfather confronted Burnside about Child's disclosure to Stepfather.
¶11 Child's biological father testified about Child's ongoing medical condition, a urinary tract infection
, and conversations he had...
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