State v. Larrabee, 20110739.

CourtSupreme Court of Utah
Citation321 P.3d 1136
Docket NumberNo. 20110739.,20110739.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Michael David LARRABEE, Defendant and Appellant.
Decision Date22 November 2013

321 P.3d 1136

STATE of Utah, Plaintiff and Appellee,
Michael David LARRABEE, Defendant and Appellant.

No. 20110739.

Supreme Court of Utah.

Nov. 22, 2013.

[321 P.3d 1137]

John E. Swallow, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., Salt Lake City, for appellee.

Linda M. Jones, Noella A. Sudbury, Salt Lake City, for appellant.

Chief Justice DURRANT authored the opinion of the Court, in which Justice DURHAM, Justice PARRISH, and Judge ORME joined.

Chief Justice DURRANT, opinion of the Court:

¶ 1 Michael D. Larrabee (Defendant) appeals three criminal convictions: two for aggravated

[321 P.3d 1138]

sexual abuse of a child, and one for dealing in material harmful to a minor. Defendant argues that the convictions cannot stand because (1) the evidence used to convict him was inherently improbable; (2) the trial court committed reversible error when it excluded expert testimony regarding Defendant's lack of pedophilic interests under rules 702 and 403 of the Utah Rules of Evidence; and (3) the prosecutor prejudiced the jury by making several improper remarks during closing arguments.

¶ 2 After careful review of the record, we conclude that Defendant failed to preserve the issue of prosecutorial misconduct for appeal. Nevertheless, we hold that defense counsel's failure to object to the prosecutor's conduct at trial constitutes ineffective assistance of counsel. We therefore remand this case to the trial court for a new trial on all counts.1


¶ 3 Defendant married Jan in 1991. At that time, Jan had a twelve-year-old daughter, Jamie, from a prior marriage, who refused to accept Defendant into the family. As Jamie matured, she became a source of friction in the Larrabee home: she was taken into police custody as early as age 13, abused drugs and alcohol, and was in and out of correctional and rehabilitation facilities for several years.

¶ 4 In 1996, Jamie gave birth to her first child, A.B., while in state custody. The following year she gave birth to B.B., and then in 1998 she gave birth to another son, T.B. Initially, B.B. and T.B. lived with their biological father, but in 1999 Jan and Defendant petitioned to become the guardians of A.B., alleging that due to her lifestyle, Jamie was unable to care for him. Jamie subsequently gave birth to two more children, and Jan and Defendant ultimately became the guardians of all five. Jamie resented Jan and Defendant, however, and threatened to take the children back from them.

¶ 5 The Larrabees settled in Kaysville in 2004. In 2005, Jamie was released from prison and came to live with the Larrabees, where her behavior once again became a source of tension in the home. Eventually, Defendant informed Jan that he could no longer tolerate Jamie's behavior and asked her to choose between Jamie and him. Defendant and Jan subsequently separated and were divorced in October 2005. Jan and Jamie then took the children and moved to St. George, while Defendant settled in Las Vegas.

¶ 6 As part of the divorce decree, Defendant was awarded visitation rights with the children every other weekend. By all accounts, Defendant exercised these rights regularly between 2005 and 2008. When he would visit, Defendant would take the children to various hotels in St. George where they would swim, watch movies, play games, shop, and go out to eat. All of the children looked forward to these visits because, as B.B. testified, “[i]t was fun.”

¶ 7 After Defendant moved to Idaho his visits became less frequent, and his last visit with the children was in August 2008. Later that year, Jamie noticed that four-year old M.V., her youngest daughter, was playing with naked Barbie dolls and moving them on top of each other. When she asked M.V. what the dolls were doing, M.V. replied that they were playing “kiss and suck.” Jamie asked M.V. whether anyone had touched her inappropriately, but M.V. did not respond.

¶ 8 Then, in January 2009, Jamie once again noticed that M.V. and a friend were playing with naked Barbie dolls. Jamie sent the friend home and informed M.V. that “Barbies don't play [like] that.” She then talked to M.V. about “good touch, bad touch” and asked M.V. “if anyone had ever touched her ... in those areas.” Initially, M.V. did not respond, but later she came out of her room and stated: “Mommy, I know who touched my pee pee. It was Grandpa Mike.” Jamie then approached B.B. and asked her whether Defendant had touched her inappropriately. She indicated that he had. The very next day, Jamie spoke with police and the State ultimately filed charges based upon B.B.'s testimony that Defendant had sexually

[321 P.3d 1139]

abused her repeatedly during his visits with the children in St. George and that he had intentionally shown her pornography.

¶ 9 B.B. had three opportunities to explain her allegations against Defendant: (1) in an interview with the Children's Justice Center (CJC), which was recorded and later admitted as evidence at trial; (2) at the preliminary hearing; and (3) at trial. Her allegations involved four general areas of sexual conduct. First, she testified that when she was five or six and the Larrabees were still living in Kaysville, Defendant took her into the bedroom one afternoon and had her pose nude while he took pictures of her.2 Second, she testified that when Defendant would come to St. George to visit, he would usually rent adjoining hotel rooms, one for the boys and one for the girls, and that “most every night” while M.V. was asleep and the boys were in their room, Defendant would lock the doors and molest her by touching her bottom, rubbing her genitals, and performing oral sex on her. B.B. also alleged that Defendant would occasionally have her touch his penis with her hand. Third, B.B. testified that she had seen Defendant molesting M.V. in a hotel room through a sliding glass door and that Defendant would also molest M.V. at night. Finally, B.B. testified that Defendant would consistently bring pornographic videos and magazines with him into the hotels, and that he would view these materials while B.B. was in the room, sometimes commenting to her about the quality of what they were viewing together.

¶ 10 Based on this testimony, the state charged Defendant with three counts of aggravated sexual abuse of a child (two for B.B., one for M.V.) and one count of dealing in materials harmful to a minor. At trial, Defendant testified in his own defense. He denied all of the allegations, described the difficult and combative relationship he had with Jan and Jamie, and testified that he “loved and cared for” the children. The state then tried to introduce evidence that Defendant had sexually molested Jamie, but, after excusing the jury, the trial court ruled that her testimony was inadmissible due to unreliability and instructed both Jamie and counsel not to refer to these new allegations in the presence of the jury. Nevertheless, despite the trial court's warning that reference to these allegations would lead to a mistrial, during closing arguments the prosecutor did refer to Jamie's allegations of sexual abuse. Neither defense counsel nor the court intervened, however, and Defendant was eventually convicted on the two counts of aggravated sexual abuse regarding B.B., the count of dealing in material harmful to a minor, but he was acquitted on the count of aggravated sexual abuse regarding M.V.

¶ 11 After trial, Defendant filed a motion to arrest judgment pursuant to rule 23 of the Utah Rules of Criminal Procedure, wherein he raised the same arguments he raises in this appeal, namely that the evidence used to convict him was inherently improbable; that the trial court erred by excluding expert testimony; and that the prosecutor's conduct during closing arguments was prejudicial. The district court denied Defendant's motion and upheld the convictions. Defendant now appeals. We have jurisdiction over this matter pursuant to Utah Code section 78A–3–102(3)(i).


¶ 12 We first address the question of whether Defendant's motion to arrest judgment served to preserve his claim for prosecutorial misconduct for appeal. Defendant argues that the motion, by itself, was sufficient to preserve the issue. For the reasons stated below, we disagree.

¶ 13 Defendant also argues that defense counsel's reaction to the prosecutor's conduct at trial was ineffective. In this respect, we agree. Accordingly, we remand this case to the trial court for a new trial on all counts.


¶ 14 We turn first to the issue of preservation. Defendant argues that he

[321 P.3d 1140]

properly preserved his claim for prosecutorial misconduct because he raised it in his motion to arrest judgment. We disagree.

¶ 15 “We have consistently held that a defendant who fails to preserve an objection at trial will not be able to raise that objection on appeal unless he is able to demonstrate either plain error or exceptional circumstances.” 3 And with respect to appellate review of closing arguments, we have previously held that we “will not examine the State's closing argument if the defendant failed to timely object to it.” 4 The reason behind this “preservation rule” is two-fold. First, the rule affords the trial court “an opportunity to address the claimed error, and if appropriate, correct it,” 5 thereby promoting judicial economy. And second, the rule prevents defendants from foregoing an objection “with the strategy of enhancing the defendant's chances of acquittal and then, if that strategy fails ... claiming on appeal that the [c]ourt should reverse,” 6 thereby encouraging fairness. In order to further both policies through this rule, “we have held that the preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that exceptional circumstances exist or plain error occurred.” 7

¶ 16 Defendant's motion to arrest judgment...

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