State v. Granere
| Docket Number | 20190593-CA |
| Decision Date | 05 January 2024 |
| Citation | 543 P.3d 177 |
| Parties | STATE of Utah, Appellee, v. Charles Philip GRANERE, Appellant. |
| Court | Utah Court of Appeals |
Third District Court, Salt Lake Department, The Honorable Linda M. Jones, No. 161909765
Ann M. Taliaferro, Salt Lake City, and Kristin Wilson, Attorneys for Appellant
Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellee
Opinion
¶1 Charles Philip Granere appeals his convictions of rape of a child, object rape of a child, and aggravated sexual abuse of a child. He argues that his trial counsel (Counsel) was constitutionally ineffective in several respects, most notably for failing to request that the jury be properly instructed on unanimity; that the trial court erred in excluding evidence supporting his theory that the child victim, Beth,1 had been sexually abused by another; and that insufficient evidence supported his convictions because Beth’s testimony was inherently improbable. We agree that Counsel was ineffective for failing to request a unanimity instruction concerning the charges for rape of a child and aggravated sexual abuse of a child, and we therefore reverse those convictions and remand for further proceedings. But because Granere’s conviction of object rape of a child withstands all his challenges on appeal, we affirm that conviction.
¶2 In September 2013, Granere, then a 34-year-old man, began dating a woman (Mother). Their relationship soon turned serious, and Mother introduced Granere to her three children, including her ten-year-old daughter, Beth.
¶3 Thereafter, because Granere "wanted to get to know" Beth and wanted Beth and his daughter, who was the same age as Beth, to "bond," Mother dropped Beth off at Granere’s apartment in Salt Lake City for a sleepover on three or four occasions. But whenever Mother dropped Beth off for these sleepovers, Granere’s daughter was not there and Granere told Mother that his daughter either had not yet arrived or had already left. Mother later testified that at the time Granere held these sleepovers, she never observed signs of trauma in Beth or behaviors such as excessive bathing or cleaning up after returning home from Granere’s apartment. She also did not detect any odors indicative of sexual activity on Beth or notice any suspicious stains on Beth’s clothing while doing laundry. Beth appeared to be upset to Mother only once after visiting Granere, the cause of which was attributed to a video game console, but Mother could not remember the specifics of that incident.
¶4 Mother also testified that Granere twice took her and Beth to his cabin in the mountains. Mother could not recall whether Beth ever accompanied Granere to his cabin alone, but she remembered that Granere once took Beth snowmobiling near his cabin.
¶5 Mother and Granere ended their relationship in late March or early April 2014. Nevertheless, Granere continued to have occasional contact with Mother and Beth. This contact came to an end in October 2015 following a cellphone-related disagreement.
¶6 Beth first disclosed to a friend that she had been sexually abused after the friend told Beth that she (the friend) had been sexually abused. Beth realized that what the friend described "kind of sounds like things someone did to me," and she then confided to the friend that she had also been sexually abused. In March 2016, Beth, now twelve years old, disclosed the sexual abuse to a school counselor, naming Granere as the abuser. The counselor reported the sexual abuse to a school administrator and to law enforcement. Mother was also called to the school, where Beth told her that Granere "had raped her." Mother took Beth home and also contacted law enforcement.
¶7 Beth was soon interviewed at the Children’s Justice Center (the CJC). Among other instances of abuse, Beth told the interviewers that Granere once told her to get in the bathtub and to insert a "small and grey" object into her vagina. When Beth refused, Granere put his hand on hers and forced the object into her vagina, causing her to bleed. Beth stated that Granere then took her to his bed. Beth speculated, "he knocked me out or something again, because I can’t remember anything from that," but she said that the following day, Granere told her, Beth also told the interviewers that on other occasions, Granere would pin her down by her arms and place his penis in her vagina, which she estimated happened "[l]ike five, seven times." Beth also recounted that on these and other occasions, Granere touched her breasts.
¶8 The following month, a sexual assault nurse examiner (Nurse) examined and interviewed Beth. Nurse observed that Beth had "two full transections that were healed [on] her hymen." Nurse later testified this type of injury is caused by "[p]enetrating trauma," possibly involving a penis, an object, or fingers; but—based on the exam—Nurse could not establish who caused those injuries.
¶9 The State charged Granere with rape of a child, object rape of a child, and aggravated sexual abuse of a child—all first-degree felonies.3 In March 2017, Granere filed a pretrial motion under rule 412 of the Utah Rules of Evidence to admit evidence that Beth’s uncle (Uncle), a convicted sex offender, had previously sexually abused her and that Uncle was the source of the two hymenal transections. Specifically, Granere argued that in mid-October 2013, Uncle was alone with Beth for half an hour on the night of her tenth birthday party, following which Beth went to the hospital experiencing pain, cramping, and vaginal spotting.4 Following an evidentiary hearing, the trial court denied that motion under rules 412 and 403 of the Utah Rules of Evidence.
¶10 Regarding rule 412, the court stated that the evidence Granere presented at the hearing "fails to support that [Uncle] was the source of the injury, and there is no basis for allowing the evidence" at trial. And regarding rule 403, the court stated that even if Uncle had sexually abused Beth, the evidence Granere sought to present at trial was not "relevant to a material factual dispute" because the issue at trial was whether Granere—and not Uncle—had sexually abused Beth. The court further stated that "such evidence, if it were presented to the jury, would be confusing and misleading." Granere later raised this same issue in a motion to continue trial and in a motion for a new trial, but both times the court reaffirmed its ruling to exclude any evidence supporting Granere’s theory that Uncle had sexually abused Beth. The jury did, however, hear evidence that Beth went to the hospital on the night of her tenth birthday with complaints of pain, cramping, and spotting.
¶11 The case proceeded to a four-day jury trial in March 2019. As part of its case-in-chief, the State called, among others, Beth, Mother, and Nurse to testify. Mother’s and Nurse’s testimonies are, in relevant part, re-counted above. Beth testified at trial that Granere sexually abused her at his apartment and at his cabin, and that the abuse occurred "many times." She stated that her first memory of abuse took place at Granere’s apartment. He had challenged her to a drinking contest, and as she drank her bottle of blue Gatorade, she began feeling "weird" and "uneasy." She next remembered being in a bathtub with Granere sitting on the toilet beside her. Granere handed her a "little silver object" and instructed her to place it in her vagina. Beth did not want to, so Granere took her hand in his and directed it to the top of her vagina. Beth recalled him "rubbing his hand and my hand and putting it on like the top of my vagina," "inside the skin folds," and stating, "[H]ere, doesn’t that feel better?" He then pushed the object further into her vagina. Beth felt a "stinging" and "burning" sensation and began to bleed. Beth testified that Granere next took her into his bedroom, sat her on his bed, and inserted his fingers into her vagina, causing her to bleed even further, and rubbed "the top part of [her] vagina." He also ran his hands up and down her waist, touching her breasts and buttocks. Beth stated that Granere also placed his tongue on her vagina, but it is unclear from her testimony when this happened.
¶12 Beth testified that another time in his apartment, Granere massaged her with baby oil and then offered her a drink that caused her to feel sleepy. She woke up to Granere on top of her with his penis in her vagina, causing her to feel "a burning sensation." Beth stated that was the most vivid memory she had of Granere inserting his penis into her vagina, but she then proceeded to recount another instance when she had been asleep in the cabin and Granere woke her up and told her, "I stuck it in all the way." When asked, "How many times do you remember this happening …?," Beth replied, "I know it’s a lot more than seven." And when asked what they would do at the cabin, Beth replied, "He would rape me." Beth also described an instance at the cabin when she was lying on the ground and Granere’s "head was in between [her] legs," shortly after which Granere masturbated in front of her.
¶13 As part of his cross-examination of Beth, Counsel played the 43-minute recording of Beth’s entire CJC interview with the purpose of "count[ing] how many times she giggles, or laughs, or finds it funny." Counsel paused the interview over 50 times to ask Beth whether she had laughed or looked at the camera at that moment. Beth acknowledged repeatedly doing so throughout the interview. Beth also stated on cross-examination that she did not report the sexual abuse at the time because Granere repeatedly told her that "this is what fathers and daughters do" and she believed "that was a daughter and father relationship."
¶14 Granere called five witnesses to testify in his defense. He called his father and a...
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