State v. King, 20030069–CA.

CourtCourt of Appeals of Utah
Citation672 Utah Adv. Rep. 24,2010 UT App 396,248 P.3d 984
Docket NumberNo. 20030069–CA.,20030069–CA.
PartiesSTATE of Utah, Plaintiff and Appellee,v.Gordon R. KING, Defendant and Appellant.
Decision Date30 December 2010

248 P.3d 984
672 Utah Adv. Rep. 24
2010 UT App 396

STATE of Utah, Plaintiff and Appellee,
Gordon R. KING, Defendant and Appellant.

No. 20030069–CA.

Court of Appeals of Utah.

Dec. 30, 2010.

[248 P.3d 988]

Herschel Bullen and Elizabeth Hunt, Salt Lake City, for Appellant.Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.Before Judges McHUGH, ORME, and BILLINGS.1

ORME, Judge:

¶ 1 Gordon R. King appeals his conviction of attempted sexual abuse of a child, a third degree felony, see Utah Code Ann. § 76–5–404.1 (2008). 2 We have twice previously reversed King's conviction and remanded for a new trial. See State v. King ( King I ), 2004 UT App 210, ¶ 27, 95 P.3d 282; State v. King ( King III ), 2006 UT App 355, ¶ 16, 144 P.3d 222. As discussed more fully in the Background section, the Utah Supreme Court reversed both of our decisions and each time remanded the case for further consideration. See State v. King ( King II ), 2006 UT 3, ¶ 26, 131 P.3d 202; State v. King ( King IV ), 2008 UT 54, ¶ 47, 190 P.3d 1283. We once again reverse and remand for a new trial.


¶ 2 King was charged with aggravated sexual abuse of a child, a first degree felony, see Utah Code Ann. § 76–5–404.1(4)–(5) (2008), after his daughter's friend reported that

[248 P.3d 989]

King had inappropriately touched her during a sleepover at his home. King pleaded not guilty, and the case proceeded to a jury trial.

¶ 3 At trial, the alleged victim testified about a so-called “tickle fight” that took place immediately prior to the alleged inappropriate touching by King. In particular, the alleged victim stated that King stuck his hand down her pants and fondled her throughout the course of an episode during which King's daughter was rubbing a pillow on the alleged victim's head. A police detective testified that the alleged victim characterized the inappropriate touching as lasting for two to three minutes. King's daughter did not observe any inappropriate touching. During closing argument, the prosecutor referred to this touching as “something that occurred in maybe seconds,” while King's daughter “was rubbing [a pillow] on her friend's head.” The prosecutor then reiterated that “[w]e don't know the exact, few seconds when this occurred.”

¶ 4 Additionally, the alleged victim admitted that after making the sexual abuse allegation against King, an acquaintance overheard a conversation that the alleged victim had with the alleged victim's younger sister in a church bathroom, in which the alleged victim said, “What if I lied?” The alleged victim did not clarify or explain the meaning of this statement at trial, nor was she asked to do so. The acquaintance, however, testified that she overheard the alleged victim say, “I am so glad that nobody found out that I lied.” During closing argument, the prosecutor purported to explain the alleged victim's testimony regarding this bathroom encounter, suggesting that the alleged victim was merely worried about “people's perception of her” and was merely “expressing concern over what people would think if she had lied” and “if they thought she was a liar.”

¶ 5 At the close of trial, the jury returned a guilty verdict on the lesser included offense of sexual abuse of a child, a second degree felony, see id. The trial court then reduced the conviction to third degree felony attempted sexual abuse of a child, pursuant to Utah Code section 76–3–402(1).4

¶ 6 Following trial, and after the record was transmitted to the court of appeals, defense counsel discovered that the record did not include, nor did either party's counsel possess, a copy of the instructions given to the jury. 5 On King's motion, the case was remanded to the trial court to reconstruct the jury instructions. After a hearing on the matter, the trial court produced a reconstructed set of twenty-six instructions, which it determined “with reasonable certainty to be the actual set of instructions given to the jury at defendant's trial.”

¶ 7 King appealed his conviction, raising a total of seven issues. He argued that (1) although two jurors were passed for cause, the trial court erred in failing to remove them, sua sponte, or question them further about possible bias, and King's trial counsel provided ineffective assistance of counsel for failing to challenge the same jurors for cause or request that their potential prejudice be further examined; (2) remarks made by the prosecutor during closing argument constituted prosecutorial misconduct; (3) the trial court committed plain error in excluding the alleged victim's prior inconsistent statements; (4) the alleged victim's credibility was improperly bolstered by State witnesses; (5) the trial court plainly erred in admitting, and defense counsel was constitutionally ineffective in introducing, the preliminary hearing transcript; (6) the trial court failed to enter findings regarding alleged inaccuracies in the presentence investigation report; and (7) the trial court's reconstruction of the jury instructions was inadequate. King argued, among other things, that the cumulative effect

[248 P.3d 990]

of these errors was grounds for reversing his conviction.

¶ 8 In 2004, we reversed King's conviction and held that the trial court abused its discretion by failing to conduct a sufficiently searching inquiry into the potential biases of two empaneled jurors when there were “specific reasons to doubt [their] impartiality.” King I, 2004 UT App 210, ¶ 27, 95 P.3d 282. Reversing on that basis, we did not reach the question of whether King's counsel was ineffective for permitting the two potentially biased jurors to be empaneled, nor any of the other issues on appeal. See id. ¶¶ 25 n. 15, 27 n. 17.

¶ 9 The State petitioned for certiorari, arguing that we erred in granting King a new trial on an issue that was not preserved for appeal. See King II, 2006 UT 3, ¶¶ 1, 11, 131 P.3d 202. The Utah Supreme Court granted certiorari and agreed with the State's contention that we erred when we excused King's failure to preserve his objection to the seating of two potentially biased jurors and when we applied an abuse of discretion standard. See id. ¶¶ 11, 26. Using a plain error analysis, the Supreme Court held that the trial court did not commit an obvious, harmful error when it seated the potentially biased jurors; reversed our decision; and remanded the case to us with instructions to consider King's ineffective assistance of counsel claim. See id. ¶ 26.

¶ 10 On remand, we followed the Supreme Court's directive to consider the ineffective assistance of counsel claim, and we again reversed King's conviction. See King III, 2006 UT App 355, ¶ 16, 144 P.3d 222. Applying the test for ineffective assistance of counsel announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we held that King successfully demonstrated that the empaneling of two potentially biased jurors could be traced to the deficient performance of King's counsel. See King III, 2006 UT App 355, ¶¶ 5, 9, 144 P.3d 222. Then, we analyzed the second element of the Strickland test, i.e., prejudice. See id. ¶¶ 10–15. We held that bias of the two jurors in question could be presumed and that King did not, therefore, need to prove actual bias on the part of the jurors. See id. ¶ 15. Because the participation of biased jurors presumptively deprives a defendant of a fair trial, we concluded that the presence of the two jurors prejudiced King, and we ordered a new trial, see id. ¶ 16.

¶ 11 The State again petitioned for certiorari, asserting that prejudice needed to be actual, not merely presumed, to prove an ineffective assistance of counsel claim. See King IV, 2008 UT 54, ¶ 13, 190 P.3d 1283. The Utah Supreme Court again agreed with the State and, accordingly, determined that a rule 23B hearing was the appropriate means to determine whether either of the two jurors was, in fact, actually biased. See id. ¶ 47. See generally Utah R.App. P. 23B.

¶ 12 On November 3, 2008, the trial court held an evidentiary hearing pursuant to rule 23B, in which the two jurors were questioned by counsel and the court regarding possible bias.6 On May 6, 2009, the trial court entered findings of fact and conclusions of law, stating that neither juror harbored any actual bias against King as a result of that juror's acquaintance with a sex abuse victim. King's primary arguments on appeal having at last been definitively resolved, on October 19, 2009, the Utah Supreme Court issued an order again remanding the case to us and emphatically instructing us to “address all [remaining] appellate issues.”


¶ 13 King argues that the prosecutor's unchallenged remarks during closing argument constitute prosecutorial misconduct requiring reversal. We review a trial court's handling of claimed prosecutorial misconduct for an abuse of discretion. See State v. Kohl, 2000 UT 35, ¶ 22, 999 P.2d 7.

¶ 14 King next asserts that the trial court acted improperly by excluding the alleged victim's prior inconsistent statements, while admitting evidence to bolster the alleged victim's credibility. “The issue of

[248 P.3d 991]

‘[w]hether evidence is admissible is a question of law, which we review for correctness [.]’ ” Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1378 (Utah 1995) (first alteration in original) (citation omitted).

¶ 15 King claims that the trial court erred by failing to make sufficient findings regarding the accuracy of the presentence investigation report. This issue presents “a question of law that we review for correctness.” State v. Veteto, 2000 UT 62, ¶ 13, 6 P.3d 1133.

¶ 16 King also contends that the absence from the record of a reliable set of jury instructions requires a new trial. We review this issue for an abuse of discretion and grant the trial court deference in determining “whether the record adequately reflects the proceedings.” State v. Menzies, 845 P.2d 220, 224 (Utah...

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