State v. Lim

• Decision Date: 03 June 2022
• Docket Number: 20190027-CA
• Citation: 513 P.3d 72
• Parties: STATE of Utah, Appellee, v. Adam Tae Kyun LIM, Appellant.
• Court: Utah Court of Appeals

513 P.3d 72

STATE of Utah, Appellee,

v.Adam Tae Kyun LIM, Appellant.

No. 20190027-CA

Court of Appeals of Utah.

Filed June 3, 2022

Andrea J. Garland, Attorney for Appellant

Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judge Ryan M. Harris concurred. Justice Diana Hagen concurred in the result.¹

MORTENSEN, Judge:

¶1 Adam Tae Kyun Lim, a hospital nurse, was charged with three counts of sexual abuse involving three different female patients. The incidents took place over nearly seven years, with over five years separating the first two incidents and almost two years separating the second and third incidents. Despite the long period of time between the instances of alleged abuse and some dissimilarities among the incidents, the State charged Lim in a single information. When Lim moved to sever the counts for separate trials, the district court denied the motion, and Lim was tried and found guilty on the three counts in a single trial. Lim appeals, alleging the court exceeded its discretion in failing to grant his motion to sever. We agree with Lim. We reverse and remand for new trials in which the counts are severed.

BACKGROUND²

First Incident

¶2 In January 2009, Allie³ was recovering at St. Mark's Hospital after undergoing surgery for complications related to Crohn's disease

. Lim, who had been assigned as Allie's nurse, came into her room during the night while she was resting. He left the lights off, "didn't say anything," and—while acting "like he was checking things"—"inserted his fingers into [her] vagina" and then "just left the room."

¶3 Allie "was in shock initially," but after Lim left, she woke her mother, who was staying in the room with her, and told her what happened. Her mother recalled that Allie "was distraught and crying and very upset" as she told her "what was going on with her." Although Allie had been taking pain medications that made her "tired" and "groggy," she "definitely" knew "that [Lim's] hands went where they were not supposed to be."

¶4 Allie filed a complaint with the hospital a few weeks later "so that if it happened again," the hospital "would know that this person did this and this was happening." During the ensuing investigation—which took place several years later after a third incident that will be discussed below—an investigator with the Utah Division of Occupational and Professional Licensing (DOPL) interviewed Lim about the incident.⁴ Lim confirmed that he had been in Allie's room to evaluate her and give her medications, that her mother had been in the room, and that the overhead lights were off when he had evaluated Allie. He was also aware that there had been a complaint that he had inserted his fingers into her vagina, which he denied having done.

Second Incident

¶5 In February 2014, Bella was admitted to Intermountain Medical Center (IMC) for an infection in her leg, which ultimately required amputation above her knee

. She testified that Lim had been her nurse and that he was "very flirtatious" and told her that she was "cute," which made her "feel really uncomfortable."

¶6 During the evening that she was recovering from her surgery, Lim said he needed to check her catheter. Bella told him that she did not "think it [needed] to be checked." But Lim insisted and proceeded to insert "his fingers inside of [Bella's] vagina and just started ... moving all around, ... jerking all around." Bella, who had been catheterized during prior hospitalizations, testified that she had never had a caregiver touch her vagina or put a finger in her vagina when checking a catheter. And although Bella was on pain medication at the time of the incident, she stated that she did not have "any doubt ... at all" that Lim had inserted his fingers into her vagina.

¶7 The following morning, Bella complained about the touching, and the police came to her room to investigate. Lim explained to the police officer that the "patient care tech" had told him Bella's "catheter was not working and that he had to pull on the catheter to see if he could make it work." Lim suggested that "when he pulled on the rubber housing that it could have given [Bella] the sensation that somebody was touching her vagina." Lim also explained to the DOPL investigator that because Bella was having trouble breathing, she was sitting up at a ninety-degree angle to make it easier for her to breathe, which would have made it difficult for him to touch her groin area. He also suggested that Bella was "disoriented" due to the combination of surgery, pain medication, and low oxygen. But the DOPL investigator testified that there was nothing in Bella's chart notes to indicate a problem with the catheter, breathing, or Bella being disoriented. Indeed, Lim eventually admitted to the investigator that Bella was sitting at a forty-five-degree angle and that "[t]here was no way that the leg could be elevated," as expected after surgery, had she been sitting straight up.

Third Incident

¶8 In December 2015, Cora was hospitalized at IMC for issues related to colitis

and Crohn's disease. During New Year's Eve night, Lim, who was assigned as Cora's nurse, entered her room, shut the door, pulled the curtains, and "insisted" that "he had to check" her EKG leads because one was "loose." Cora, who said she had "many EKGs" in the past and knew that "if something's wrong, then the alarm will go off," described Lim's behavior as "not professional at all." While putatively checking the EKG lead, Cora said Lim began "fondling" her breast "back and forth ... [j]ust across the nipple." Lim then immediately left the room.

¶9 Shortly after midnight, Lim entered Cora's room again, shut the door and curtain, and pulled two drinks from behind his back to "have a toast." Initially, Cora thought it was sparkling grape cider but then suspected it was champagne. After Lim left, she poured the remainder down the drain. Later, Lim returned to Cora's room to administer pain medication, after which he got down to the level of the bed railing and "just stared" at Cora for a "minute-and-a-half to two minutes ... not saying anything, just staring," making Cora "very uncomfortable."

¶10 Later, when staff from IMC called to see how her stay was, Cora reported Lim's behavior. In the ensuing investigation, Lim admitted that he went to Cora's room to fix the EKG lead. He first denied touching Cora's breast, but he later acknowledged that he "may have done that by mistake." Lim confirmed that he got down on his knees to watch her because he needed to get eye level with her. He also admitted to giving her a drink of sparkling apple cider that was available at the nurse's station. Lim opined that Cora's pain medications might have "alter[ed] her perception," leading her to lodge a complaint, but he admitted that she did not appear to have "an altered perception" or to be "disoriented."

Charges and Proceedings

¶11 Lim was charged in a single information with two counts of object rape and one count of forcible sexual abuse. Before trial, Lim moved the district court to sever the charges and grant separate trials on each count, arguing that there was no common scheme or plan to support joinder and that joinder would prejudice him.⁵

¶12 The State opposed the motion, asserting that Lim was a "registered nurse, who repeatedly had access to vulnerable female patients" and "took advantage of them sexually using similar methods and then repeatedly refuted the complaints filed by the women, claiming that the women were confused or mistaken." "[T]he similarity of alleged victims and the commonalities in [Lim's] actions," the State argued, made joinder proper. Specifically, the State said there was "a strong visual connection" among the victims because (1) they were hospitalized in Salt Lake County, Utah; (2) they were treated by Lim in his capacity as a registered nurse; (3) they complained that Lim "committed inappropriate sexual acts after befriending them in a manner unlike other healthcare professionals"; (4) they were abused late in the evening; and (5) they had been given narcotic pain medications.

¶13 The State argued that the joinder would not prejudice Lim because evidence involving all the counts would "likely be admissible whether there was one or multiple trials." The State did not argue that there would be "no prejudice" to Lim in trying all the "counts in a single trial," conceding that "it would be difficult to imagine a scenario in which any defendant might not be prejudiced to at least some degree when a jury is allowed to hear evidence from multiple counts or from prior, uncharged acts." But the State asserted that joinder was not unfairly prejudicial here because even if the charges were severed, "the jury would likely hear a portion, if not all, of the evidence regarding the other charged counts, [since] the evidence would be admissible as 404(b) evidence in each of the separate trials," presumably to counter Lim's assertion that he was "performing appropriate nursing care, which necessarily involves touching the body," and that "these female patients were confused or mistaken regarding their complaints."

¶14 The district court denied Lim's motion to sever. Even though the charges were by nature prejudicial when tried together, the court determined that there was "no prejudice that results by joining them together." "[J]oinder would not result in prejudice to [Lim] because evidence for all [the] counts would be allowed whether there were separate trials (where the evidence would be repeated in each trial) or one trial (where the evidence would be presented only once)." The court elaborated that "joinder was proper in this case given that evidence in each of the ... counts was strikingly similar" and that "evidence from all [the] counts was necessary to avoid jury confusion and for the jury to accurately assess any claims made by [Lim] regarding accidental touching or victim mistake." Lastly, the...