State v. Hall

• Decision Date: 11 September 1997
• Docket Number: No. 960690-CA,960690-CA
• Citation: 946 P.2d 712
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robin Mark HALL, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 712

946 P.2d 712

STATE of Utah, Plaintiff and Appellee, v. Robin Mark HALL, Defendant and Appellant.

No. 960690-CA.

Court of Appeals of Utah.

Sept. 11, 1997.

Wesley M. Baden, Vernal, for Defendant and Appellant.

Jan Graham and Kris C. Leonard, Salt Lake City, for Plaintiff and Appellee.

Before DAVIS, P.J., WILKINS, Associate P.J., and BENCH, J.

OPINION

BENCH, Judge:

Defendant Robin Hall appeals his conviction of aggravated sexual abuse of a child, a first-degree felony. See Utah Code Ann. § 76-5-404.1 (1995). We affirm.

BACKGROUND

The following facts are recited in the light most favorable to the jury's verdict. See State v. Snyder, 932 P.2d 120, 122 (Utah.Ct.App.1997).

On July 26, 1995, a father living in Vernal, Utah, asked defendant to watch his three children, including seven-year-old A.C., while he traveled out of town. Defendant agreed, and the father departed the same day. That evening, A.C. slept on a couch in the basement. She was awakened the following morning when defendant, who was sitting beside her, pulled down her shorts and panties and stroked her on the "private." A.C. pretended to be asleep while defendant was touching her. When she pretended to be waking up, however, defendant removed his hand and pulled up her shorts and panties.

Saying nothing to defendant, A.C. immediately went upstairs and took a bath. After getting dressed and eating breakfast, A.C. walked to a friend's house down the street. A.C. told her friend about what had happened that morning, and then left to see her grandmother (Grandmother) at work. Grandmother testified that when A.C. came into the office, she appeared nervous and upset. Grandmother further testified that A.C. started crying as she said that defendant had touched her under the panties on her "private parts."

Pauline Hauer of the Division of Family Services (DFS) ¹ and Detective Cari Park of the local police department were notified about the incident. The following day, Ms. Hauer and Detective Park conducted a videotaped interview of A.C. at the police station. Several days later, Detective Park arrested defendant, who was charged with aggravated sexual abuse of a child. A jury found defendant guilty of the charge.

Defendant raises several arguments on appeal. He contends that the trial court committed plain error when it (1) failed to comply with Utah Code Ann. § 76-5-411 (1995) before admitting A.C.'s hearsay statements into evidence, and (2) admitted evidence of A.C.'s religious beliefs to enhance her credibility, in violation of Rule 610 of the Utah Rules of Evidence. Defendant further argues that he was denied the effective assistance of counsel, citing defense counsel's failure to (1) object to the above errors; (2) object, on several grounds, to the testimony of Carolyn Henry, the State's expert witness; (3) request jury instructions on expert testimony; (4) raise specific objections to the State's impeachment of defense witnesses; and (5) request jury instructions on lesser included offenses. Finally, defendant argues that the State presented insufficient evidence of his intent to commit the offense.

PLAIN ERROR

Although defense counsel did not object to the hearsay evidence at issue in this case, we may take " 'notice of plain errors affecting substantial rights.' " State v. Eldredge, 773 P.2d 29, 35 (Utah 1989) (quoting Utah R. Evid. 103(d)). To establish plain error, defendant must show that "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). "If any one of these requirements is not met, plain error is not established." Id. at 1209.

I. Failure to Comply With Section 76-5-411

Defendant contends that the trial court committed plain error when it failed to enter findings and conclusions, as required by the Utah Code, supporting the reliability of A.C.'s hearsay statements admitted into evidence. Specifically, he challenges the trial court's admission of (1) Grandmother's testimony about A.C.'s statements given the day of the incident; (2) Pauline Hauer's testimony, which repeated A.C.'s responses given during the interview; and (3) a transcript of the videotape of A.C.'s interview, ² as well as the videotape itself. Before discussing the merits of defendant's arguments, we will summarize the background underlying the admission of the evidence at issue.

Before trial, the prosecutor filed a notice of his intent to introduce hearsay evidence pursuant to Utah Code Ann. § 76-5-411 (1995), which provides that "a child victim's out-of-court statement regarding sexual abuse of that child is admissible as evidence although it does not qualify under an existing hearsay exception." The prosecutor expressed his intent to introduce the "transcript and/or video and/or audio tape record" of A.C.'s interview at the police station.

Section 76-5-411 requires the court to enter findings and conclusions "to explain its reasons for admitting ... the testimony." State v. Nelson, 725 P.2d 1353, 1356 n. 3 (Utah 1986). At a pretrial hearing on the hearsay evidence, the court and the parties discussed the requirements of section 76-5-411. For various reasons, however, the parties agreed to postpone further action on the hearsay issue until later in the trial. The court never entered findings and conclusions supporting admission of the hearsay evidence.

In State v. Cook, 881 P.2d 913 (Utah Ct.App.1994), cert. denied, 890 P.2d 1034 (Utah 1995), this court held that "a trial court's failure to enter written findings and conclusions under section 76-5-411 is plain error." Id. at 916. In so concluding, this court distinguished State v. Bullock, 791 P.2d 155, 158-59 (Utah 1989), in which the Utah Supreme Court refused to consider whether the trial court had plainly erred by failing to comply with section 76-5-411. See Cook, 881 P.2d at 915 n. 3. In Bullock, the supreme court declined to consider the argument because the alleged error was "the result of a consciously chosen strategy of trial counsel." Bullock, 791 P.2d at 158. In Cook, this court noted that, unlike in Bullock, the record did not reveal any evidence that the alleged error resulted from counsel's trial strategy. See Cook, 881 P.2d at 915 n. 3. We therefore will decline to consider a defendant's plain-error arguments if the alleged errors reasonably resulted from defense counsel's "conscious decision to refrain from objecting," or if defense counsel "led the trial court into error." Bullock, 791 P.2d at 158-59; see also State v. Morgan, 813 P.2d 1207, 1211 (Utah Ct.App.1991) (refusing to consider plain-error argument because "it was within counsel's professional discretion to not object to testimony that would aid [trial] strategy").

A. Grandmother's Testimony

Defendant argues that the trial court plainly erred when it allowed Grandmother to testify about (1) A.C.'s nonverbal conduct, i.e., that A.C. appeared nervous and upset, and (2) A.C.'s statement that defendant had touched her under the panties on her "private parts." Defendant contends that, although not included in the prosecutor's notice, Grandmother's testimony was subject to the requirements of section 76-5-411.

A hearsay "statement" may include nonverbal conduct only if the declarant intends the conduct to be an "assertion." Utah R. Evid. 801(a)(2). In this case, defendant makes no attempt to show that A.C. intended her behavior to be an assertion. We therefore decline to address defendant's argument regarding A.C.'s nonverbal conduct. See State v. Vigil, 922 P.2d 15, 26 (Utah Ct.App.1996) (declining to address argument "because defendant did not clearly analyze the issue").

Turning to A.C.'s verbal statement to Grandmother, we conclude that a "conceivable strategic purpose" supports the admission of this evidence. See State v. Labrum, 925 P.2d 937, 939 (Utah 1996). In his opening argument, defense counsel told the jury that he would "bring out some inconsistencies some questions, some things that don't quite make sense." In the interview at the police station, A.C. had said that her clothes were on when defendant touched her. On direct examination shortly before Grandmother's testimony, however, A.C. testified that defendant had pulled down her shorts and panties when the touching occurred. Therefore, defense counsel might reasonably have permitted the testimony to see which "version" A.C. had told Grandmother. During his closing argument, defense counsel reminded the jury about A.C.'s inconsistent recollections on this point. Because defense counsel's decision to permit the testimony "was reasonable in light of his trial strategy," we do not address defendant's plain-error arguments regarding Grandmother's testimony. Morgan, 813 P.2d at 1211.

B. Pauline Hauer's Testimony ³

Later in the trial, the State called Pauline Hauer, the DFS worker who conducted the interview of A.C. The prosecutor asked Ms. Hauer questions about the body inventory form that she had used during the interview. Ms. Hauer testified that the purpose of the form, which contained anatomically correct drawings of the body, was to evaluate A.C.'s ability to identify the names of certain body parts. She testified that, with one exception, A.C. was able to identify the parts of the body discussed during the interview.

We reject defendant's challenges to this testimony because, even assuming that A.C.'s naming of body parts constitutes a "statement regarding sexual abuse," Utah Code Ann. § 76-5-411(1) (1995), defense counsel's decision not to object was consistent with his trial strategy. See Morgan, 813 P.2d at 1211. Ms. Hauer's testimony enabled defense counsel to emphasize that A.C. had, without hesitation, identified the genital area as her "china." In closing argument, defense counsel revealed the exculpatory value of A.C.'s response: if A.C. had thought of her genital area as her "china," why had she reported that defendant touched her on...