State v. Emmett

• Decision Date: 07 April 1992
• Docket Number: No. 910077,910077
• Citation: 839 P.2d 781
• Parties: STATE of Utah, Plaintiff and Appellee, v. James Lloyd EMMETT, Defendant and Appellant.
• Court: Utah Supreme Court

Page 781

839 P.2d 781

STATE of Utah, Plaintiff and Appellee, v. James Lloyd EMMETT, Defendant and Appellant.

No. 910077.

Supreme Court of Utah.

April 7, 1992.

Rehearing Denied July 7, 1992.

R. Paul Van Dam, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.

Gary W. Pendleton, St. George, for defendant and appellant.

AMENDED OPINION

HALL, Chief Justice:

Defendant James Lloyd Emmett appeals his conviction of sodomy upon a child. ¹ We reverse and remand for a new trial.

On August 28, 1991, Emmett was brought to trial on the charges that he sodomized and, in a separate incident, sexually abused his five-year-old son. The only direct evidence of sodomy came from the testimony of the alleged victim, who stated that his father had "put his front private in my back private." The child was not certain whether he was clothed during the incident, and he testified that he thought his father was clothed. There was no physical evidence of sexual abuse, nor was any evidence presented that the child was presently exhibiting psychological symptoms of sexual abuse. However, a psychologist testified that the child was bright and resistant to suggestion.

Similarly, the only direct evidence that Emmett had sexually abused his son was presented through the alleged victim's testimony. Emmett's son stated that after he had gotten out of a bath, Emmett had rubbed baby oil all over his body, including his genitals. However, on cross-examination the child stated that Emmett did not rub his "private until it changed or got hard" but simply rubbed oil over his entire body.

At the close of the State's case, Emmett moved for a dismissal of the charge of child sexual abuse. The trial judge reserved ruling on the motion until he had an opportunity to review the record. However, defendant presented his entire case before the trial court ruled. Emmett took the stand and denied all of the allegations. Prior to submitting the case to the jury, the trial court dismissed the charge of sexual abuse of a child on the ground that the State had failed to establish a prima facie case of child sexual abuse. The charge of sodomy upon a child was submitted to the jury, and a verdict of guilty was returned.

Emmett advances several claims of error, the first being that the trial court erred by not ruling on his motion for a directed verdict at the close of the State's case.

Emmett was entitled to a prompt ruling on his motion. As we have previously stated:

[Utah Code Ann. § ] 77-17-3 clearly entitles the defendant to an immediate ruling on the sufficiency of the prosecution's case at the close of its case. The trial judge should at that time "rule promptly upon such a motion so that the defendant may decide whether or not to proceed with the introduction of evidence in his defense." The purpose of the rule is to "avoid forcing a defendant into going forward with his own evidence when the state's case is insufficient." ²

While the State admits that the trial court erred, it argues that Emmett waived this claim or, in the alternative, that the error was harmless.

In dealing with the claim of waiver, it is important to emphasize that Emmett made his motion to dismiss in a proper and timely manner. The State's contention is based on the fact that Emmett failed to take exception when the trial court took the matter under advisement. This argument misapplies our cases dealing with waiver. We have never required criminal defendants who have properly presented a claim to take exception to a trial court's erroneous ruling in order to preserve the issue on appeal. Rather, our case law establishes that the doctrine of waiver has application if defendants fail to raise claims at the appropriate time at the trial level, so the trial judge has an opportunity to rule on the issue ³ or if they do not create an adequate record for an appellate court to review their claims. ⁴ Such was not the case here; hence, no waiver has occurred.

The State makes two arguments in asserting that the failure to rule on Emmett's motion was harmless. First, the charge of sexual abuse of a child should not have been dismissed at the close of the State's case. Accordingly, Emmett was not prejudiced by the trial court's reserving judgment on the issue.

When a motion for a directed verdict is made at the close of the State's case, the trial court should dismiss the charge if the State did not establish a prima facie case against the defendant by producing "believable evidence of all the elements of the crime charged." ⁵ Under the State's theory of the case, the elements of the child sexual abuse charge are that Emmett touched the genitals of his son with the intent to arouse or gratify his own sexual desire. ⁶ The testimony of Emmett's son clearly establishes a touching of the genitals. Therefore, the issue is whether the State produced prima facie evidence that this touching was done with a sexual intent.

While evidence of intent is usually not susceptible to direct proof, it can often be inferred from circumstance. ⁷ The State argues that sexual motivation can be inferred from the testimony of Emmett's son stating that Emmett briefly rubbed baby oil over his entire body, including his genitals, after he had gotten out of the bath. In addition, Emmett's wife testified that Emmett had bought the oil without her knowledge and that there was no medical need to rub baby oil on the child.

Testimony that Emmett brought the oil into the house is of little probative value since Emmett's wife also testified that he often did the shopping for the family. We are therefore left with evidence that Emmett briefly touched his five-year-old son's genitals while performing an act that, while not medically necessary, is arguably hygienic. Given this evidence, we are in agreement with the trial court that the State failed to establish a prima facie case of sexual abuse of a child. Family relationships between parents and small children normally involve a degree of intimacy; the present allegations do not describe an act that falls outside the bounds of normal behavior. More is needed to produce prima facie evidence of sexual intent than the allegation that a parent briefly touched a young child's genitals while the child was bathing, coupled with the allegation that this touching was not medically necessary.

The State argues that the error is harmless because it did not impact the jury's decision. In instances where an error does not impact a federal constitutional right, the test used for determining an error's harmfulness is whether there is a reasonable likelihood that absent the error a different result would have occurred. ⁸ This determination should be made on the basis of the record as a whole. In the instant case, the determination is best made by viewing this error in conjunction with other errors which occurred during the trial, specifically, instances of prosecutorial misconduct.

Emmett raises several claims of prosecutorial misconduct. One claim centers on comments the prosecutor made in closing arguments concerning Emmett's previous conviction for forgery. Generally, the test used for determining whether a prosecutor's statements are improper and constitute error is whether the remarks " 'called to the jurors' attention matters which they would not be justified in considering in reaching a verdict.' " ⁹ Improper statements will require reversal if they are determined to be harmful. ¹⁰

In the instant case, however, Emmett failed to make a timely objection to the prosecutor's statements. Failure to object to improper remarks will constitute a waiver of the claim, unless the remarks constitute plain error. ¹¹ Plain error is error that is both harmful and obvious. ¹² This court reviews allegations of plain error despite the lack of a timely objection, provided, of course, that the trial court was not led into error. We do so in order to avoid manifest injustice and because, if the error is obvious, the trial court has the opportunity to address the error regardless of the fact that it was never brought to the court's attention. ¹³ Therefore, in order to obtain a reversal, Emmett must show that the prosecutor's remarks were obviously improper and harmful and that his failure to object did not lead the court into error.

It is well established that under Utah Rules of Evidence 404 and 609, past criminal convictions are only admissible for the limited purpose of attacking the credibility of a defendant and should not be used as substantive evidence of guilt. ¹⁴ Indeed, rule 404(b) expressly states, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."

In commenting on Emmett's forgery conviction, the prosecutor noted that the victim of the crime was Emmett's sister. ¹⁵ Stating that Emmett is "[s]ome one who took advantage of his own family member," the prosecutor declared, "Well, he did it again." This comment clearly urged the jury to view Emmett as a person who commits crimes against his family and to use this characteristic as evidence that Emmett sodomized his son. Therefore, the comments are in direct violation of rules 404 and 609. Given the clarity of the law in this area and the blatant nature of the prosecutor's statements, it should have been obvious to the trial court that the prosecutor's remarks called to the jurors' attention matters they were not justified in considering. Therefore, the first part of the plain error standard has been met.

In determining whether these errors are harmful, it is important to note that the evidence of sodomy in this case, while sufficient to support a conviction, is not compelling. The entire State's case is built on the somewhat conflicting and confused testimony of a five-year-old child, uncorroborated by any other direct evidence of guilt. While it cannot be expected that the testimony of a young child should be as...