State v. Isom, 20130740–CA.
| Decision Date | 25 June 2015 |
| Docket Number | No. 20130740–CA.,20130740–CA. |
| Citation | 354 P.3d 791,2015 UT App 160 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Jace Robert ISOM, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Edwin S. Wall, Salt Lake City, Attorney for Appellant.
Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee.
Opinion
¶ 1 Defendant Jace Robert Isom appeals three first degree felony convictions, two for aggravated sexual abuse of a child and one for rape of a child. The child in question was the five-year-old daughter of Isom's live-in girlfriend. Isom challenges a handful of alleged errors at trial, none of which, singly or in combination, requires reversal. We therefore affirm.
¶ 2 The child was five years old when her mother moved in with Isom. The child and her older brother stayed with their mother and Isom on weekends. Isom sexually abused the child on multiple occasions. The child's mother participated in some, but not all, instances of the abuse.
¶ 3 Isom admitted to a friend that he and the child's mother had been abusing the child. Isom did so during a conversation in which he invited his friend to engage in a sexual “threesome” with Isom and the child's mother. While discussing this invitation, Isom told his friend “about what was going on with [the child].” Isom explained that the child's mother had been abused as a child and that “one of her fantasies” was “to do it with her children as well.” Isom then disclosed details of the child's abuse. Isom's friend “didn't want to have anything to do with what was going on.”
¶ 4 About six months later, Isom's friend told the child's paternal aunt about the abuse. The child's aunt relayed this information to the child's father, who in turn contacted Isom's friend. After learning the details of the abuse, the child's father asked the child if anything bad was happening to her while she was staying with her mother and Isom. The child told her father that Isom “had touched her on her bad spot.”
¶ 5 The child's father told the child's school counselor about the abuse, but when the counselor interviewed her, the child denied the abuse. The Children's Justice Center (the CJC) interviewed the child the next day. In a recorded interview at the CJC, the child acknowledged the abuse and said that she had not disclosed it, because she was afraid of getting in trouble. Isom told her “like a thousand times” not to tell anyone, and that he would ground her if she did.
¶ 6 At trial, Isom was convicted on two counts of aggravated sexual abuse of a child and on one count of rape of a child. He appeals.
¶ 7 Isom asserts seven claims of error on appeal. First, he contends that the trial court violated his due process rights by failing to provide him with an arraignment hearing.
¶ 8 Second, Isom contends that insufficient evidence supported his conviction because the child did not identify him as her abuser at trial.
¶ 9 Third, Isom contends that the “prosecutor committed plain error” by arguing in closing that the jurors should put themselves in the child's shoes and that his trial counsel rendered constitutionally ineffective assistance by failing to object to the prosecutor's comments.
¶ 10 Fourth, Isom contends that the trial court violated his Confrontation Clause rights by placing a whiteboard barrier between Isom and the child as she testified about her abuse.
¶ 11 Fifth, Isom contends that the trial court erred in permitting the prosecuting attorney to ask leading questions when directly examining the child.
¶ 12 Sixth, Isom contends that the trial court plainly erred in permitting other-acts evidence against him under rule 404(b) of the Utah Rules of Evidence and that his trial counsel rendered constitutionally ineffective assistance by failing to challenge this evidence.
¶ 13 Finally, Isom contends that the cumulative effect of the trial court's errors and his trial counsel's constitutionally ineffective assistance requires reversal.
¶ 14 Isom contends that the trial court violated his due process rights by failing to provide him with an arraignment hearing. Isom asserts that he “was never arraigned”; that “he was never read the indictment, nor asked if he waived the reading”; and that he “was never advised by the court of the substance of the charges against him, nor called upon to enter a plea.” Because “the accused in a felony case is always entitled to an arraignment and plea before ... trial,” State v. Peterson, 681 P.2d 1210, 1215 (Utah 1984) (citation and internal quotation marks omitted), Isom argues that the trial court's failure to provide these procedural safeguards violated his due process rights. The State responds that Isom did not preserve this claim at trial and that he does not argue any exception to the preservation requirement on appeal.
¶ 15 “[T]o preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (citation and internal quotation marks omitted). Isom concedes that he did not preserve this claim at trial but asserts on appeal the exceptional-circumstances exception to the preservation rule. See Kell v. State, 2012 UT 25, ¶ 36, 285 P.3d 1133. “ ‘[E]xceptional circumstances' is a concept that is used sparingly, properly reserved for truly exceptional situations,” such as “ ‘rare procedural anomalies.’ ” State v. Irwin, 924 P.2d 5, 11 (Utah Ct.App.1996) ; see also State v. Nelson–Waggoner, 2004 UT 29, ¶ 23, 94 P.3d 186.
¶ 16 The exceptional-circumstances doctrine does not aid Isom for three reasons. First, Isom asserts the exception for the first time in his reply brief. “It is well settled that issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court.” Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (citation and internal quotation marks omitted).
¶ 17 Second, Isom's reply brief fails to adequately analyze the claim. An appellant's brief must “contain the contentions and reasons of the appellant with respect to the issues presented, ... with citations to the authorities, statutes, and parts of the record relied on.” Utah R.App. P. 24(a)(9). Briefs require “not just bald citation to authority but development of that authority and reasoned analysis based on that authority.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998). “An issue is inadequately briefed when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.” State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (citation and internal quotation marks omitted).
¶ 18 Here, Isom makes a single reference to the exceptional-circumstances doctrine in his reply brief, stating that we “should address [the due process] issue because it is a[n] exceptional circumstance in every regard.” But his argument lacks even “bald citation to authority” and, in any event, contains no “development of that authority [or] reasoned analysis based on that authority.” Thomas, 961 P.2d at 305. Because “[a]n inadequately briefed claim is by definition insufficient to discharge an appellant's burden to demonstrate trial court error,” Isom's due process challenge fails. Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 37, 335 P.3d 885.
¶ 19 Third, there is nothing exceptional about these circumstances. The exceptional-circumstances doctrine “is a concept that is used sparingly, and properly reserved for truly exceptional situations, for cases ... involving rare procedural anomalies.” State v. Kozlov, 2012 UT App 114, ¶ 35, 276 P.3d 1207 (omission in original) (citation and internal quotation marks omitted); see also State v. Dunn, 850 P.2d 1201, 1209 n. 3 (Utah 1993). Moreover, we reserve the exceptional-circumstances doctrine for “the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice.” Nelson–Waggoner, 2004 UT 29, ¶ 23, 94 P.3d 186. Isom fails to identify any rare procedural anomaly or truly exceptional circumstance. Accordingly, we decline to review his due process claim.
¶ 20 Isom next contends that insufficient evidence supported his convictions because the child never identified Isom as her abuser at trial. Isom argues that “[e]ven when viewing the evidence in the light most favorable to the [S]tate, and drawing all inference[s] in favor of the verdict, no evidence identifies [Isom] as ... having committed the offenses.” The State responds that Isom did not preserve this claim and that, in any event, sufficient evidence supported his convictions.
¶ 21 “As a general rule, claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. Rule 12(a) of the Utah Rules of Criminal Procedure requires a motion to “state succinctly and with particularity the grounds upon which it is made and the relief sought.” “Where the grounds upon which a motion is made before the trial court differ from the grounds argued on appeal, appellate courts will generally dismiss those arguments as unpreserved.” State v. Gonzalez, 2015 UT 10, ¶ 24, 345 P.3d 1168 (citing State v. Meza, 2011 UT App 260, ¶ 4, 263 P.3d 424 ). For example, a motion for a directed verdict on the ground that the evidence failed to tie the defendant to the crime does not preserve a claim that the evidence failed to show defendant used or threatened to use a dangerous weapon.See Meza, 2011 UT App 260, ¶ 4, 263 P.3d 424.
¶ 22 That said, a generic motion for directed verdict will preserve a specific ground for appeal when “the specific ground for an objection is clear from its context.” Gonzalez, 2015 UT 10, ¶ 26, 345...
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