State v. Christensen

• Decision Date: 10 November 2016
• Docket Number: No. 20140720–CA,20140720–CA
• Citation: State v. Christensen, 2016 UT App 225, 387 P.3d 588 (Utah App. 2016)
• Parties: State of Utah, Appellee, v. Jacob Lawrence Christensen, Appellant.
• Court: Utah Court of Appeals

387 P.3d 588

2016 UT App 225

State of Utah, Appellee,

v.Jacob Lawrence Christensen, Appellant.

No. 20140720–CA

Court of Appeals of Utah.

Filed November 10, 2016

David M. Perry, Attorney for Appellant

Sean D. Reyes, Salt Lake City and Tera J. Peterson Attorneys for Appellee

Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.

Opinion

TOOMEY, Judge:

¶1 Defendant Jacob Lawrence Christensen appeals his conviction for object rape, a first degree felony. He argues there were multiple instances of plain error and ineffective assistance of counsel during his trial. We affirm.

BACKGROUND¹

¶2 Victim knew Defendant from middle school, but they lost touch when she moved out of state. Years later, after Victim returned to Utah to attend college, Defendant contacted her through social media and the two began to spend time together.

¶3 Although their relationship was not romantic, it began to get physical. Victim consented to some sexual touching; on one occasion she manually stimulated Defendant, and on another occasion she performed oral sex on him. In each case, after "only a couple of minutes" Victim began to feel uncomfortable, and she terminated the action before Defendant ejaculated. On other occasions, Defendant asked Victim to have sex with him, but she told him that she did not want to.

¶4 One night, Victim invited Defendant to her house. She and a roommate (Roommate) decided to take the drug Ambien in order to hallucinate, and Victim told Defendant of their plans. They wanted him to be with them in case one of them overdosed. Victim and Roommate picked up Defendant at his house, and he agreed to drive them home.

¶5 En route to Victim's house, Victim and Roommate each took three Ambien pills. Victim began feeling "a little bit dizzy" and Roommate began hallucinating and feeling "extremely ill." Upon arrival, Roommate vomited outside the car, and Victim vomited in the bathroom. Victim also began hallucinating; she hallucinated that people were coming into the living room, and she had Defendant and Roommate sit next to her to make space for them. Victim testified that the hallucination was more like a "lucid dream"; she "recognized that [she was] having a hallucination" and that "it was not reality."

¶6 At some point, Victim "blacked out." The next thing she remembered was being "flipped over" from her back onto her stomach and feeling "the sharpest pain that [she had] ever felt in [her] life through [her] rectum and up [her] spine." Victim "screamed" that it hurt, and then she felt what was "inside" of her "being removed." Victim was in her bedroom, but she could not recall how she got there. Defendant was behind her, and as she turned over, he came "back around back onto the bed." Victim had never had sex before; she "wasn't really positive what had happened" or what "steps [she] needed to take." She asked Defendant if she needed to get "Plan B," because she was worried she might get pregnant. She told Defendant that he had raped her.

¶7 Defendant denied he had raped her and told her she was being "over dramatic." He said there was no need to get "Plan B" because he had not ejaculated, and if she did get pregnant, she could just have an abortion. During their "confrontation" Victim saw Defendant writing on the chalkboard in her room, though she could not see what he was writing. Defendant then woke Roommate to borrow her car to drive himself home. Meanwhile, Victim showered because she felt "dirty" and "disgusting." After returning to her room, Victim noticed the writing on the chalkboard, which read, "Abortion," "Pro–choice," and "Fuck Dumb Bitches.

¶8 Victim woke Roommate in the early morning and disclosed that she had been raped. She left the house to stay with friends in another city, and was examined by a sexual assault nurse later that day. The examination revealed that Victim had six injuries: three lacerations to her labia majora and minora, two lacerations in her anal area, and a scratch on her inner right thigh. The injuries were acute, meaning they had occurred in the last twenty-four to forty-eight hours. The hospital reported the assault to the police.

¶9 Victim never returned to her house—she gave up her scholarship, dropped out of school, and moved home to be with her parents. After the move, Victim could only sleep for a couple of hours at a time. She had anxiety. She "felt broken" and "couldn't be around other people." A year after the assault, she began to have flashbacks; memories from that night would "play over and over again in [her] mind.

¶10 In the course of their investigation, the police twice asked Victim to call Defendant. Both phone calls were recorded. In the first call, Victim confronted Defendant about what he had done, but he denied that anything happened. Victim persisted, asking him, "[W]hy did it hurt?" and saying, "I woke up in pain." Defendant told her, "[You] know I have hands right? ... I have hands...." In the second call, Defendant again denied that he raped her, saying, "[W]e didn't have sex," and that "rape is sex, period.

¶11 Defendant was charged with one count of rape and one count of sodomy, both first degree felonies. The Information also included an alternative charge of object rape, a first degree felony.

¶12 At trial, the State called multiple witnesses including Victim, Roommate, the investigating police officer, and the examination nurse. The State also called an expert witness, a clinical psychologist, who testified about the symptoms of post-traumatic stress disorder (PTSD) and opined that Victim exhibited some behaviors consistent with those symptoms. The State's expert did not testify that Victim suffered from PTSD or that the symptoms she experienced arose because she had been sexually assaulted. Defendant called his own expert witness in clinical psychology.

¶13 Ultimately, the jury acquitted Defendant of the rape and sodomy charges, but found him guilty of object rape. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Defendant raises three issues on appeal. He concedes that these issues were not preserved at trial, and asks us to review them for plain error and ineffective assistance of counsel. First, he contends the trial court plainly erred by allowing Victim to testify, arguing that she was incompetent to testify.² He also claims defense counsel was ineffective for not objecting to that testimony. Next, Defendant contends the court plainly erred by permitting the State's expert testimony on PTSD, and he again claims his counsel was ineffective for not objecting to it. Finally, Defendant contends that his counsel was ineffective with regard to his own expert's testimony.

¶15 To establish plain error, Defendant must show that "(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." State v. Griffin , 2016 UT 33, ¶ 17, 384 P.3d 186 (citation and internal quotation marks omitted).

¶16 Claims of ineffective assistance of counsel raised for the first time on appeal are reviewed for correctness. State v. Lucero , 2014 UT 15, ¶ 11, 328 P.3d 841. To establish ineffective assistance of counsel, Defendant must show (1) that trial counsel rendered deficient performance, falling below an objective standard of reasonable professional judgment, and (2) that trial counsel's performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; accord State v. Bond , 2015 UT 88, ¶ 14, 361 P.3d 104.

ANALYSIS

I. Victim Was Competent to Testify.

¶17 Defendant first contends Victim was incompetent to testify under rule 602 of the Utah Rules of Evidence. He argues the trial court plainly erred by allowing her testimony and trial counsel was ineffective for not objecting to it.

¶18 "Utah law imposes a very low bar for establishing the competency of a witness." State v. Calliham , 2002 UT 87, ¶ 22, 57 P.3d 220 ; see also Utah R. Evid. 601(a) ("Every person is competent to be a witness unless these rules provide otherwise."). Competency requires witnesses to have "personal knowledge of the matter," Utah R. Evid. 602, meaning witnesses must "have the opportunity and the capacity to perceive the events in question." State v. Eldredge , 773 P.2d 29, 33 (Utah 1989).

¶19 Defendant specifically claims Victim "rendered herself incapable to observe" the events because she was under the influence of Ambien, asserting Victim " ‘blacked out’ and had no recollection as to what happened for significant stretches of time." But a witness is not rendered incompetent merely because her memory is "less than complete," see id. or because she was intoxicated or otherwise impaired during the events in question, see State v. Villarreal , 857 P.2d 949, 956 (Utah Ct. App. 1993) (concluding the victim was competent to testify even though she was intoxicated while she was sexually assaulted), aff'd , 889 P.2d 419 (Utah 1995).

¶20 Here, Victim had the opportunity and the capacity to perceive the events surrounding the assault, in particular the intense pain she felt in her rectum. Though she passed out while under the effects of Ambien, the pain of the experience brought her to consciousness. She had detailed memories of pain and other sensations, of seeing Defendant, and of conversing with him. Even though the effects of the drug may have rendered her memory incomplete, Victim was present, conscious at times, and able to remember the assault. She was thus competent to testify. She was also competent to testify to her experiences before and after the night of the assault. Thus, the trial court did not err in allowing her testimony.

¶21 "Once a witness is deemed competent, matters of credibility are best left to the jury." Calliham , 2002 UT 87, ¶ 23, 57 P.3d 220. Doubts about a witness's ability to testify accurately and truthfully can be investigated through...