State v. Gollaher

• Decision Date: 24 September 2020
• Docket Number: No. 20160317-CA,20160317-CA
• Citation: 474 P.3d 1018
• Parties: STATE of Utah, Appellee, v. Scott Logan GOLLAHER, Appellant.
• Court: Utah Court of Appeals

474 P.3d 1018

STATE of Utah, Appellee,

v.Scott Logan GOLLAHER, Appellant.

No. 20160317-CA

Court of Appeals of Utah.

Filed September 24, 2020

Peter Daines, Attorney for Appellant

Sean D. Reyes and Marian Decker, Salt Lake City, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.

Opinion

ORME, Judge:

¶1 Scott Logan Gollaher challenges his convictions on four counts of aggravated sexual abuse of a child. First, he contends that after the jury informed the trial court that two jurors had difficulty hearing the victims’ testimonies, the court erred in denying his motion for a mistrial, instead opting to replace the incapacitated jurors with two alternates. He also asserts that the court erred in declining his request to specifically ask whether the members of the reconstituted jury could hear material testimony, instead inquiring only generally regarding their capacity to fully consider all evidence presented at trial. Second, he argues that the jury instructions did not adequately inform the jury of the constitutional unanimity requirement. Finally, he asserts that the court erred in permitting the State to present evidence of a prior conviction for sexual abuse of a child by calling the prior victim to testify instead of reading the stipulation that he had offered to the jury. We affirm.

BACKGROUND

¶2 In 2012, the State charged Gollaher with four counts of first-degree aggravated sexual abuse of a child for touching the clothed genitalia of two eleven-year-old girls, AM and OP.¹ See Utah Code Ann. § 76-5-404.1(2), (4) (LexisNexis 2012). In the information, the State did not identify the specific incidents of touching for which he was charged. In 2016, the trial court held a nine-day jury trial at which Gollaher represented himself, with the limited assistance of standby counsel.

¶3 Testimony began on the third day of trial—a trial that was fraught with auditory issues. AM and OP, both soft-spoken minors, were the only witnesses to testify that day. Although the witness stand held a microphone, its purpose was to record the proceedings rather than to amplify the witnesses’ voices. OP testified first. On cross-examination, Gollaher asked her to speak "a little louder." Not long thereafter, the court also asked her, on account of her "somewhat light voice," to "speak up just a little bit to make sure that the jurors can hear you."

¶4 Following a break between OP's and AM's testimonies, the court noted that it had received "a report that the jurors are ... having a difficult time hearing." It noted that although "some [jurors] can hear fine," others had "some more difficulty" hearing "[c]ounsel or the witness." The court stated that the issues were "attributable largely to simply the layout of the [court]room," where counsel's podium was positioned in such a way that Gollaher and the prosecutor had to question witnesses with their backs turned to the jury. As a result, in hopes that their "voice may carry a little bit better," the court asked them to "direct [their] physical orientation to the bench" and turn their heads "both directions" between the witness and the jury as they spoke. The court also instructed the bailiff to "maintain contact with the jury" and to alert the court if certain jurors continued to have difficulty hearing the testimony. Additionally, the court at times turned off a fan that also interfered with the acoustics of the room.

¶5 Following these adjustments, the State called AM as a witness. As soon as AM was sworn in, the court reminded her to "speak up as much as you can so that everybody [who] needs to hear the information in your testimony will be able to hear clearly." However, just a few moments into AM's testimony, Gollaher's standby counsel interrupted, stating, "I'm even having a hard time hearing the witness from where I'm sitting." The court then noted that AM had "a soft voice" and asked her to "project your voice a little bit more ... to the point that it feels like you are talking loudly." Shortly after AM resumed her testimony, the court interrupted her, urging, "Again, speak up, ma'am. Keep that authoritative voice going." And a little later, the court again requested, "try and project your voice as best you can," to "increase the volume." AM completed her testimony that day.

¶6 At the beginning of the next day of trial, the court noted that "[t]he jury has had some issue with hearing some of the witnesses" and stated for the record that it had obtained "some devices to hopefully help with the hearing."² However, a juror informed the court that only one of the devices worked; hers did not. The court accommodated her by reorganizing the jurors’ seating arrangement so that she could hear better from her new position. The court also added a sound-amplifying microphone to the witness stand. These and other measures appear to have largely improved the jury's ability to hear subsequent testimony, although the court occasionally had to ask witnesses to hold the microphone closer to their mouths and on at least one occasion, the court briefly halted proceedings while technological issues with that microphone were resolved. The court at times "apologize[d] for the technology limitations," stating that it was "doing the best [it] can." But in the end, when during closing argument Gollaher raised a concern that the jury could not hear certain testimony, the court declared that it was "satisfied" that the jury "did hear a complete record" because "there were numerous statements" throughout the trial "to ensure that they did."

¶7 SCH was the first witness to testify after AM and OP. In 1996, Gollaher had been convicted of second-degree sexual abuse of a child for improperly touching then-twelve-year-old SCH. At a prior evidentiary hearing, the trial court granted the State's motion to admit evidence of that conviction through SCH's testimony. The court's ruling "permit[ted] the introduction of the conviction and the summary of the facts supporting the conviction, but no more." At trial, Gollaher offered to stipulate to his prior conviction in lieu of SCH's testimony. The State declined this offer, and the court permitted SCH to testify.

¶8 SCH recounted Gollaher's abuse of her in detail. SCH also testified, "I ... instantly knew [Gollaher] was a bad guy ... and I thought he would kill me or kill my family." Gollaher objected to these remarks, and the court sustained his objection. SCH further testified, among other things, that she disclosed the abuse to authorities six months after it happened, that she testified at trial after Gollaher was charged, and that Gollaher was convicted. Several other witnesses testified after SCH.

¶9 Although the State presented evidence of approximately eight prohibited touches of AM and OP by Gollaher, the jury instructions on each of the four charged counts did not identify a specific instance of touching. Instead, four identical elements instructions recited that the jury "must find from the evidence, beyond a reasonable doubt, that in an instance separate from the instances which form the basis of the State's claims on [the other three counts], all of the following elements of that crime are established." Those instructions did not specifically require a unanimous decision. Instead, three other instructions discussed the unanimity requirement. One instruction provided, in relevant part, "It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching a unanimous agreement, if your individual judgment allows such agreement." Another instructed, "This being a criminal case, it requires a unanimous concurrence of all jurors (i.e., all voting the same) to find a verdict." The third—and most important—unanimity instruction was not part of the written jury instructions, as hereafter explained.

¶10 Gollaher objected to the written instructions, requesting that the elements instructions for each count identify a specific victim and touching. The court denied Gollaher's request, ruling that "[i]t is not required that the instructions identify in minute detail the particular person or the particular activity which is claimed to be the specific offending conduct."

¶11 During closing argument, the prosecutor suggested that the jury could "pick or choose" which four of the eight possible instances of prohibited touching it could convict Gollaher of without "necessarily hav[ing] to agree from juror to juror on the top four counts." The prosecutor explained that, for example, "one juror may have two counts ... where OP was molested, and another juror may have only one count when she was molested and three counts when [AM] was molested." When the prosecutor finished addressing the jury, and before the jury heard Gollaher's closing argument, the court stated—without being prompted—that it "has determined that it is both appropriate and necessary to give an additional instruction to correct what the Court believes to be an incorrect statement of the law during the State's argument." The court then clarified,

The jury must find unanimously four separate instances, specifically as provided by the instructions. It is not appropriate for each juror to independently determine whether there are some number of offenses and then aggregate that determination. The jury must make a determination as to each count, and be able to find unanimously a specific instance that meets the criteria for the offense as to that count.

If such a unanimous determination cannot be made as to four separate instances, then whatever number or no instances that are determined unanimously will control the jury's verdict. There must be identified instances on which the jurors unanimously agree for each offense charged.

¶12 At the close of trial, the court excused the two alternate jurors, and the remaining jurors retired to deliberate. Approximately 30 minutes into its deliberations, the jury asked for transcripts...