State v. Coombs

• Decision Date: 10 January 2019
• Docket Number: No. 20151063-CA,20151063-CA
• Citation: 438 P.3d 967
• Parties: STATE of Utah, Appellee, v. Kelly Bruce COOMBS, Appellant.
• Court: Utah Court of Appeals

438 P.3d 967

STATE of Utah, Appellee,
v.
Kelly Bruce COOMBS, Appellant.

No. 20151063-CA

Court of Appeals of Utah.

Filed January 10, 2019

Emily Adams, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Lindsey L. Wheeler, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.

Opinion

MORTENSEN, Judge:

438 P.3d 969

¶1 Kelly Bruce Coombs was charged with two counts of child rape, two counts of child sodomy, and eleven counts of sexual exploitation of a minor for possession of child pornography. In exchange for Coombs’s guilty pleas to attempted child rape, attempted child sodomy, and sexual exploitation of a minor, the State dismissed the child rape and child sodomy charges. Coombs was sentenced to two concurrent terms of fifteen years to life. On appeal, Coombs argues that his counsel performed deficiently by not arguing for the application of an interests-of-justice proportionality analysis at his sentencing. Coombs asserts that such an analysis would have revealed his sentence to be arbitrary in comparison with the seriousness of his crimes and the sentences for other offenses in Utah. Coombs argues that the sentencing court would have imposed a lighter sentence had it come to this realization. We are unpersuaded and affirm the sentence Coombs received.

BACKGROUND

¶2 Coombs was charged in two separate cases. One involved the sexual abuse of his stepdaughter (Victim); the other concerned his possession of child pornography. The two cases were consolidated in the sentencing court and on appeal.

Sexual Abuse of Victim

¶3 Coombs repeatedly raped and sodomized Victim from the time she was six years old until she turned nine. He committed this abuse knowing that Victim had been sexually abused previously by a different family member.

¶4 The abuse began when Victim lived with her mother, two brothers, and Coombs. Victim stated that since she did not have her "real dad," she and Coombs "decided that [they] were going to do something as father and daughter"—a "father/daughter day." While Coombs and Victim were sitting on Coombs’s bed, Victim stated that Coombs showed her a picture on the Internet of a girl "sucking a penis." Coombs suggested to Victim that it was "one of the options" for the two of them as a father and daughter activity. Victim testified that Coombs then took off his clothes, made her remove her clothes, and "touched" her vagina with his penis. Victim also testified that on the following day, Coombs "touched" her vagina with his penis a second time. On another occasion, Victim stated that Coombs "made" her go to his bedroom and "take off [her] clothes." Coombs then "took off all his clothes" and "made [her] suck his penis."

¶5 Coombs stopped his abuse of Victim for a brief time, but he resumed when the family moved to a new home in a neighboring town. Victim testified that Coombs’s abuse started again "like a switch had turned back on" after the move. Victim stated that Coombs entered her bedroom one day while her mother was working. While Victim was on her bed and her clothes were off, Coombs’s "penis touched [her] vagina" for a third time.

¶6 Victim also said that, while she was sleeping, Coombs snuck into her bedroom on numerous occasions in the new home, pulled down her shorts and underwear, and took photographs of her. When this intrusion caused her to wake, Victim recalled seeing Coombs "running out of her room."

¶7 When Victim was nine years old, she disclosed to her grandmother that Coombs was sexually abusing her. Victim’s grandmother reported the abuse to local police a few days later.

Possession of Child Pornography

¶8 While Coombs was being investigated for sexually abusing Victim, an independent, parallel investigation into Coombs’s possession of child pornography was in progress. Coombs had downloaded at least eleven images of prepubescent females engaged in explicit sexual activity. These same images were later located on Coombs’s cell phone when it was seized incident to his arrest for sexually abusing Victim. Upon discovering that Coombs was in possession of child pornography, law enforcement officers suspected he might be involved in manufacturing pornography involving Victim.

438 P.3d 970

Summary of the Proceedings

¶9 For his sexual abuse of Victim, the State originally charged Coombs with two counts each of child rape and child sodomy, each carrying a presumptive prison sentence of twenty-five years to life. He was also charged with eleven counts of sexual exploitation of a minor for his possession of child pornography.

¶10 But Coombs agreed to a plea deal with the State in exchange for reduced charges. He pled guilty to one count of attempted child rape, one count of attempted child sodomy, and eleven counts of sexual exploitation of a minor. As a factual basis to support the plea, the State cited evidence that Coombs "had attempted to have vaginal and oral sex with his nine-year-old step daughter," that he had "put [Victim’s] mouth on his penis," and that he possessed "at least 11 pictures/videos of child pornography depicting prepubescent children engaged in sexual activity." In his plea affidavit, Coombs acknowledged that (1) "[his] penis touched [Victim’s] vagina, and [Victim’s] mouth touched [his] penis," (2) "[Victim] was under 14 years of age," and (3) "[he] uploaded 11 images of child pornography to an online storage account." In addition to accepting a guilty plea in exchange for reduced charges, the State agreed to recommend concurrent sentencing.

¶11 At the sentencing hearing, the court clarified that the presumptive sentence for attempted child rape and attempted child sodomy is a prison term of "15 years to life and with the provision that the court may impose a lesser sentence, 10 years to life, six years to life, or three years to life, if the interests of justice so require."

¶12 Coombs’s counsel asked the sentencing court to impose the minimum sentence of three years to life, asserting that Coombs’s case represented "one of the rare instances where the [sentencing court] should deviate" from the presumptive sentence of fifteen years to life. Counsel argued that the following mitigating factors supported a "lesser punishment" for Coombs: (1) his minimal criminal history; (2) his age of twenty-six with "a significant life ahead of him" including "goals" and "aspirations"; (3) his openness to receiving treatment; (4) his employment prospects and strong family support; and (5) his desire to complete college-type courses.

¶13 The State asked for the presumptive sentence of fifteen years to life, arguing that the longer sentence would give Victim time to grow into adulthood without having "to look over her shoulder at parole hearings" for Coombs. The State also asserted that "no amount of mitigating circumstances" could outweigh the circumstances of the abuse Coombs committed. The State noted that Coombs was in a position of trust and knew of prior abuse that Victim had suffered. Furthermore, Victim was of a "truly ... vulnerable age" and was abused over a three-year period. And the abuse was not momentary or incidental but involved grooming and repeated instances of oral sex and rape. The State summarized its position in regard to mitigation: "[T]his is not a momentary touching in passing. This was a calculated thing knowing that he had a vulnerable victim that he preyed upon.... [Y]ou've got ... three to four years of sexual offending. So again this is not a just momentary bad day."

¶14 Before imposing the sentence, the court specifically considered whether to "depart from the presumptive sentence" of fifteen years to life "in order to achieve the interests of justice." The court acknowledged Coombs’s limited criminal history, acceptance of responsibility, strong family support, relative youth, amenability to supervision, desire for treatment, and remorse as mitigating circumstances. But the court also recognized aggravating circumstances, including the number of charges, the young age and vulnerability of Victim, the severity of Coombs’s actions (i.e., repeated attempts to commit rape and sodomy on a child), Coombs’s knowledge of Victim having been abused in the past, showing pornography to Victim in an attempt to normalize the behavior, and Coombs’s possession of child pornography where other minors were victimized. The court advised Coombs that its sentence was "not about imposing a judgment that [found him] one hundred percent evil," but the court clarified that what Coombs "did to this child was evil." Thus, the trial judge concluded, "In good conscience, I cannot find that the interests of justice are served by a lower

438 P.3d 971

range. You have committed great harm to this child, and you need to be—society needs to hold you accountable for that."

¶15 The court sentenced Coombs to: (1) fifteen years to life for attempted rape of a child; (2) fifteen years to life for attempted sodomy on a child; and (3) eleven terms of one to fifteen years for sexual exploitation of a minor. All the sentences were ordered to run concurrently...