State v. Lairby

Decision Date31 December 1984
Docket NumberNo. 18998,18998
Citation699 P.2d 1187
PartiesSTATE of Utah, Plaintiff and Respondent, v. Timothy M. LAIRBY and Mildred R. Lairby, Defendants and Appellants.
CourtUtah Supreme Court

Timothy Lairby, pro se.

Roger Taylor Nuttall, Salt Lake City, for defendants and appellants.

David L. Wilkinson, Atty. Gen., Dave B. Thompson, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

Appellant Timothy M. Lairby appeals his conviction of rape under U.C.A., 1953, § 76-5-402 (1978), forcible sexual abuse under § 76-5-404 (1978), and forcible sodomy under § 76-5-403 (1978). Appellant Mildred R. Lairby appeals her conviction of forcible sexual abuse under § 76-5-404 (1978). Appellants have filed a pro se brief, signed only by Timothy Lairby, and a supplemental memorandum of points and authorities prepared by counsel. We have consolidated the claims where appropriate and will address them in the following order: judicial error, ineffective assistance of counsel, credibility of certain testimony, and insufficiency of the evidence to support the verdicts.

The charges against Mildred Lairby involve sexual abuse of her four-and-a-half-year-old stepdaughter, Virginia Lairby. The charges against Timothy Lairby involve sex crimes against his natural daughter, Virginia, and his eight-year-old stepdaughter, Carri Long. Carri is Mildred Lairby's natural daughter.

Wanda Lairby, Virginia's natural mother, was divorced from Timothy Lairby in December 1980. Wanda Lairby retained temporary custody of the Lairby children, and Timothy Lairby was granted visitation rights every Saturday from noon to six p.m. and from Friday until Sunday at six p.m. on the third weekend of each month. Timothy and Mildred Lairby were married in February 1981. It was during the weekend visits at defendants' home that the alleged sexual abuse of Virginia occurred. Carri Long resided with Mildred and Timothy Lairby during the period she was allegedly victimized.

On April 19, 1981, at her home following a visit with her father and stepmother, Virginia complained to Wanda Lairby that her "privates hurt." Virginia testified at trial that her privates began to hurt after she slipped and fell in the tub while taking a bath and that the pain made her think of what Mildred Lairby had done to her during Virginia's most recent visit. Virginia testified that Mildred Lairby stuck a fork in her privates in the bathroom of Timothy and Mildred Lairby's home on Easter Sunday (April 19) 1981. Virginia further testified that the fork caused her to bleed so that she had to wash the blood out of her panties and that Mildred put an ice cube on her privates to stop the bleeding, telling her that she would give her candy and she should "forget" the incident. Virginia stated that Timothy Lairby was present on this occasion and that he helped Mildred Lairby hurt her.

Wanda Lairby testified that she took Virginia to the hospital on April 20. Dr. Elmo Grewell, the examining physician, testified that redness existed around the mucous membrane of Virginia's vagina, but he was unable to categorically state whether or not molestation had taken place based on Virginia's physical condition.

Virginia testified that Timothy Lairby had hurt her several times. Virginia testified she had seen appellant's penis, she knew its anatomical location, she drew it for defense counsel, she remembered the penis as being hard when it touched her, and she recalled that she was hurt and cried when the penis touched inside her vagina. Virginia made graphic references to the seminal emission from defendant's penis, describing it as a yellow-brown mix and stating that the penis "puked" all over her privates so that she had to wash it off. She also recounted other episodes when Timothy Lairby touched her privates with his finger and when he "sucked" her privates.

Carri Long testified that she was sexually abused by Timothy Lairby. Carri testified that she had seen his penis, and she observed him holding his penis with his fist. She also stated that on the weekend following her birthday, defendant laid her on a bed, pulled off her pants and underwear, exposed himself to her, and touched her vagina. Carri testified that on another occasion Timothy Lairby removed her clothes again and proceeded to touch the inside of her vagina with a plastic object.

Both defendants testified, generally, that the incidents did not happen, that Virginia is an imaginative child, and Carri is an habitual liar. Four character witnesses testified to the effect that the Lairbys appeared to have a normal family life and were active in their church and neighborhood.

I. Judicial Error
A. Legality of Arrests

Defendants contend that the State did not comply with U.C.A., 1953, § 77-1-3(3) (1982), requiring that informations be "presented and signed by a prosecuting attorney." The informations were subscribed and sworn to by Guy W. Blunk, a police officer, before a circuit judge. On the back side of the informations appears the statement, "Authorized for presentment and filing: Ted Cannon, County Attorney," and the personal signature of "W.C. Gwynn, Deputy." In State ex rel. Cannon v. Leary, Utah, 646 P.2d 727, 730 (1982), this Court determined that the requirement of § 77-1-3(3) is met by an information being sworn to by a person having reason to believe the offense has been committed and authorized by a prosecuting attorney. Thus, the informations in the present case met the necessary legal requirements. Moreover, defendants waived any objections to defects in the informations where they made no objections to the informations either before or during trial. See State v. Hall, Utah, 671 P.2d 201, 202 (1983); Utah R.Crim.P. 12(b)(1), (d).

Defendants also argue that there was no probable cause for their arrests. A defendant's failure to object to the legality of his arrest prior to trial constitutes a waiver of that issue. Utah R.Crim.P. 12(b)(1), (d). In the present case, defendants waived any objections to the legality of their arrests.

B. Preliminary Hearing

Defendants next contend that they were denied their due process rights with respect to their preliminary hearings. Specifically, their charges include the following: the prosecution suppressed mitigating evidence at Mildred Lairby's preliminary hearing; the court improperly admitted affidavits of Carri Long referring to her victimization; and there was insufficient evidence to establish probable cause.

In support of their argument, defendants have attached their own (uncertified) copies of a partial transcript of the preliminary hearings. In doing so they have not complied with Utah R.Civ.P. 75(m). Nowhere in the record is it established that the State or the court has approved the transcripts, and the transcripts were not made a part of the record. Defendants' assignments of error cannot be considered by this Court in the absence of record evidence. See State v. Jones, Utah, 657 P.2d 1263, 1267 (1982). 1

C. Speedy Trial

Defendants next contend they were denied their constitutional right to a speedy trial. Mildred Lairby was arrested May 14, 1981, and Timothy Lairby was arrested July 22, 1981. Both were tried in the same proceedings on October 26, 1982.

They rely on Cain v. Smith, 686 F.2d 374, 381 (6th Cir.1982), which lists the following factors as probative in evaluating whether the right to a speedy trial has been violated: length of delay, reasons for delay, whether defendant asserted his or her right to a speedy trial, and whether defendant was prejudiced by the delay. Accord State v. Knill, Utah, 656 P.2d 1026, 1029 (1982).

The continuances, except for those on the court's own motion due to a crowded calendar, were stipulated to by defendants' counsel. One continuance was at defendants' request. Defendants admit that their counsel advised them that time was in their favor, but that "in hindsight," defendants now believe the lapsed time was "a conscious, wilfull [sic], and purposeful act on the part of the Deputy County Attorneys involved to gain a tactical advantage over the accused," specifically, to allow the coaching of the child witnesses in their testimony.

This Court has held that a defendant who has not asserted his or her right to a speedy trial in the lower court has waived the right to raise the issue on appeal. State v. Sparks, Utah, 672 P.2d 92, 94 (1983). Thus, in the present case defendants waived a speedy trial because they did not assert their rights below and because their counsel stipulated to the continuances.

Finally, defendants' claim of prejudice is unsubstantiated. Whether the victims fabricated the incidents was a decision for the trier of fact. Additionally, both defendants were granted pretrial release and were therefore not prejudiced by having been incarcerated for an unconscionable period of time.

For the same reasons, defendants' argument that Timothy Lairby's preliminary hearing was delayed unreasonably is without merit. The parties stipulated to the continuances, no objection was made below, and there is no showing of prejudice.

D. Jurisdiction

Defendants also contend the district court lacked jurisdiction over them because there was only a circuit court information and no district court information reciting that defendants were bound over to that court. Defendants rely on a former Utah Code provision, U.C.A., 1953, § 77-17-4 (1978), requiring the recitation of the binding over on an information.

The Utah Code of Criminal Procedure was revised effective July 1, 1980, and the foregoing provision was repealed. 1980 Utah Laws ch. 15, § 1. Defendants were arrested in 1981, and therefore the old provision was not in effect. Moreover, even under the former code provision, failure to make a timely objection to the information constitutes waiver. State v. Anderton, 69 Utah 53, 64-65, 252 P. 280, 284 (1926). This point is therefore without merit.

E. Depositions of State Witnesses

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