State v. Kelley

Decision Date02 May 2000
Docket NumberNo. 981798.,981798.
Citation1 P.3d 546,2000 UT 41
PartiesSTATE of Utah, Plaintiff and Appellee, v. Allan KELLEY, Defendant and Appellant.
CourtUtah Supreme Court

Jan Graham, Att'y Gen., Kris C. Leonard, Asst. Att'y Gen., Salt Lake City, and Sandra L. Sjogren, Ogden, for plaintiff.

Geoffrey L. Clark, Ogden, for defendant.

HOWE, Chief Justice:

INTRODUCTION

¶ 1 Defendant Allan Kelley appeals from a conviction by a jury of attempted rape, a first degree felony.1 He raises two issues on appeal: first, whether the trial court abused its discretion in qualifying the prosecution's expert witness and allowing him to state conclusions founded upon alleged impermissible bases, and second, in the alternative, whether defense counsel's failure to timely object to the qualifications of the expert or raise an objection to the principles that the expert relied upon constituted ineffective assistance of counsel.

BACKGROUND

¶ 2 In reviewing a jury verdict, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the verdict. See State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237; State v. Brown, 948 P.2d 337, 339 (Utah 1997). We recite the facts accordingly.

¶ 3 The victim is a mentally disabled, thirty-seven-year-old woman. Normally, she lives at Medallion Manor, an intermediate care facility for disabled individuals. She is incapable of living alone and needs assistance with simple daily tasks. At the time of trial, she was being taught basic bathing and grooming skills, and how to make her bed.

¶ 4 In December of 1997, the victim was staying with her brother in their childhood home over the Christmas holiday. Defendant Allan Kelley was also living in the home with the victim's brother. Defendant grew up in a house down the street from the victim and had known her family for over thirty years. He had married and moved away from the neighborhood years before but, due to marital problems, returned to stay with the victim's brother for three months in 1996, and again five months prior to the incident in this case in 1997.

¶ 5 On December 26, the brother left early in the morning for work, and the victim was alone at the house for a few hours until her sister could pick her up. At approximately 8:35 a.m., defendant returned to the house after spending the night with his estranged wife. Alone with the victim, defendant undressed himself and began to fondle her over her nightgown. He then partially undressed her, continued to fondle her breast and genital area, and eventually attempted to initiate sexual intercourse.

¶ 6 The sister came to pick the victim up sometime between 8:30 and 9:00 a.m. With her own key, she entered the home and found the victim lying on her back on the floor, naked from the waist down. She then saw defendant, completely naked, run out of the room and into his bedroom. She immediately helped the victim get dressed and helped her into her car. The victim was frightened and kept repeating what had happened. The sister drove to the home of another brother where they called the police. The Weber County prosecutor charged defendant with rape, a first degree felony pursuant to Utah Code Ann. § 76-5-402 (1999).

¶ 7 At trial, the jury was instructed on, and presented evidence by the parties as to, both the offense of rape and the lesser included offense of attempted rape. Defendant argued in his defense that although he did attempt to initiate sexual intercourse, the victim appeared to consent to and even encourage his sexual advances. He did, however, testify that he knew she was "mentally retarded to some extent," that she could not speak clearly, and that she could not work or live by herself. The State argued that the victim, because of her mental disability, could not consent to or comprehend defendant's sexual advances as recognized by Utah Code Ann. § 76-5-406 (1999), which provides:

An act of . . . attempted rape . . . is without consent of the victim under any of the following circumstances:
. . . .
(6) the actor knows that as a result of mental disease or defect, the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it;
. . . .

¶ 8 Four months before trial, the prosecutor gave defendant notice that she intended to call Ronald J. Wright, a mental retardation professional ("MRP")2 and director of the victim's residential home, as an expert witness. Wright was to testify as to the victim's mental capabilities and ability to appraise the nature of a sexual relationship. Defense counsel failed to file any objection until four days prior to trial. At trial, the judge heard oral arguments on the objection and ruled that if the prosecution could lay the proper foundation, Wright could testify as an expert. ¶ 9 Wright testified that although the victim had the physical body of an adult, she did not have the mental capacity to consent to, or understand the consequences of, a sexual act. In making this determination, Wright testified that he based his opinion on an intelligence quotient test ("I.Q.test"), a mental age assessment, his training as an MRP, his twenty-seven years of experience as a special education teacher, his fifteen years of experience as program director of the victim's residential facility, and his personal experience with her. At the close of trial, defendant was found guilty of attempted rape and sentenced to serve a term of three years to life.

ANALYSIS

¶ 10 Defendant appeals from his conviction on two alternate theories. First, he contends that Wright was not qualified to testify as an expert witness as to the victim's ability to consent and that the sources upon which he relied in forming his opinion were impermissible bases for his testimony. In the alternative, defendant argues that his trial counsel's failure to timely and adequately object to Wright's expert testimony constituted ineffective assistance of counsel.

I. ADMISSIBILITY OF EXPERT TESTIMONY
A. Qualification of Wright as Expert Witness

¶ 11 Defendant first argues that Wright was not qualified to testify as an expert regarding the victim's mental capabilities because he was not qualified to diagnose mental retardation, give I.Q. tests, or make mental age assessments. It is well established that trial courts have wide discretion in determining the admissibility of expert testimony. See Patey v. Lainhart, 1999 UT 31, ¶ 15, 977 P.2d 1193; State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993); Randle v. Allen, 862 P.2d 1329, 1337 (Utah 1993); State v. Shickles, 760 P.2d 291, 302 (Utah 1988); State v. Espinoza, 723 P.2d 420, 421 (Utah 1986). Consequently, absent a clear abuse of this discretion, an appellate court will not reverse the trial court's determination. See Larsen, 865 P.2d at 1361.

¶ 12 The standard for the admissibility of expert testimony is set forth in Utah Rule of Evidence 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

"The critical factor in determining the competency of an expert is whether that expert has knowledge that can assist the trier of fact in resolving the issues before it." Patey, 1999 UT at ¶ 15, 977 P.2d 1193; see also Larsen, 865 P.2d at 1361; Wessel v. Erickson Landscaping Co., 711 P.2d 250, 253 (Utah 1985).

¶ 13 We hold that the trial court did not abuse its discretion in determining that Wright was qualified to testify. He had specialized knowledge that aided the trier of fact in determining whether the victim had sufficient mental ability to appraise the nature of a sexual act. Wright has a degree in special education from Brigham Young University and had been a special education teacher for twenty-seven years at the time of trial, working at a local high school as well as at Medallion Manor. At Medallion Manor, Wright is an MRP and program director, which entails making determinations about the effect of mental disabilities on the cognitive functions of disabled individuals and then creating and tailoring programs to teach basic behaviors and activities. He uses the recommendations of a team of experts such as psychologists, psychiatrists, and medical doctors to determine the intellectual and physical abilities of the individuals with whom he works. Wright testified that during his fifteen years as an MRP at Medallion Manor, he had worked closely with forty to fifty people with the same level of mental disability as the victim. At the time of trial, he had been working daily with her for over two years. He was able to detail what she was capable of accomplishing. He also testified specifically as to her understanding of sexual concepts, as she had been enrolled in a sexual relations class at Medallion Manor and was removed when she was unable to grasp the concepts being taught.

¶ 14 Defendant argues that because Wright was not licensed to diagnose mental retardation, he was not qualified to testify as to the victim's cognitive abilities. However, licensing in and of itself is not dispositive of an expert's qualifications to offer an opinion. See Randle, 862 P.2d at 1337. Defendant also contends that Wright was not qualified to administer an I.Q. test or make a mental age assessment, and consequently should not have been allowed to testify as an expert. At trial, Wright did testify that he was in fact qualified to administer an I.Q. test, even though he did not administer the test to the victim. We do not, however, find this issue determinative as to whether Wright can testify. He was not called to testify as to her I.Q. or mental age, but as to her overall ability to consent to a sexual relationship. "A person may be qualified to testify as an expert by virtue of experience and training; formal education is not necessarily required." Patey, 1999 UT...

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