State v. Loose, 981726.

• Decision Date: 14 January 2000
• Docket Number: No. 981726.,981726.
• Citation: 2000 UT 11,994 P.2d 1237
• Parties: STATE of Utah, Plaintiff and Appellee, v. William Jesse LOOSE, Defendant and Appellant.
• Court: Utah Supreme Court

994 P.2d 1237

2000 UT 11

STATE of Utah, Plaintiff and Appellee, v. William Jesse LOOSE, Defendant and Appellant.

No. 981726.

Supreme Court of Utah.

January 14, 2000.

Jan Graham, Att'y Gen., J. Frederic Voros, Jr., Christine Soltis, Asst. Att'ys Gen., Salt Lake City, for plaintiff.

Ronald J. Yengich, Vanessa Ramos-Smith, Salt Lake City, for defendant.

ZIMMERMAN, Justice:

¶ 1 William Jesse Loose ("Loose") appeals his conviction on two counts of sodomy on a child and two counts of sexual abuse of a child. Loose raises several arguments on appeal. He argues that the trial court erred by denying him a new trial based on: (i) the admission of improper hearsay and profile evidence offered by a therapist who had treated the victim, J.J.; (ii) the admission of hearsay evidence offered by J.J.; (iii) the exclusion of relevant defense evidence concerning the relationship between Loose and his wife; and (iv) the discovery after trial of new evidence. Finally, Loose argues that he received ineffective assistance of counsel. We affirm.

¶ 2 We view the facts in the light most favorable to the jury verdict and recite them accordingly. See State v. Brown, 948 P.2d 337, 339 (Utah 1997)

. On four different occasions in 1995, Loose sexually abused his stepdaughter, J.J. In August of 1996, a year after the final incident of abuse, J.J.'s mother, Carol Correna Loose ("Corey"), took J.J. to see a social worker, Joe Tabish. Corey told Tabish that J.J. had been exhibiting unusual behaviors, including excessive hand washing, withdrawal from peers, decreased school performance, and anorexic tendencies. Corey also mentioned to Tabish that J.J. had been sexually abused by her biological father.

¶ 3 Tabish began by asking J.J. about the abuse she suffered at the hands of her biological father. He then asked if she had been abused by anyone else. She responded with a shocked look and then answered affirmatively. She indicated that it was "Jesse," the defendant, who had abused her. Tabish disclosed this information to Corey, who, upon hearing the accusation, was "hysterical, incredibly emotional, [and in a] state of denial." That evening, Corey separated from Loose and moved herself and her children from their home.

¶ 4 Loose was bound over for trial. The State requested a hearing pursuant to section 76-5-411 of the Utah Code to determine if Tabish should be allowed to testify regarding J.J.'s initial disclosures to him, despite their being hearsay. The court found that Tabish should be allowed to testify. It did not rely on section 76-5-411, however. It held that Tabish's recitation of the statements J.J. made to him was admissible non-hearsay. The court found that "[t]he State is offering them not to prove the truth of the matter asserted therein, but to provide a framework. The statements are essential for the jury to understand how these allegations against the Defendant arose.... Allowing Mr. Tabish to [testify] ... is important in allowing the State to present a cohesive case."

¶ 5 The case proceeded to trial. J.J. was the State's first witness. She testified regarding the incidents of abuse discussed above. On cross-examination, Loose's attorney introduced excerpts of a letter that J.J. had written before trial regarding these incidents in order to show inconsistencies between the written statement and J.J.'s trial testimony. On redirect, the State had J.J. read another portion of the letter. Loose's attorney objected to her reading from the letter, claiming that it was hearsay. The State responded that Loose opened the door to the reading by using it to impeach J.J. The court overruled the objection.

¶ 6 The next witness called by the State was Tabish. Tabish's testimony included the statements made by J.J. during their first meeting. The prosecutor asked him if the behaviors J.J. exhibited were "consistent with children who may have been sexually abused." Loose's attorney objected to this question. The objection was sustained. The prosecutor then asked whether Tabish had seen such behaviors in other children who had been sexually abused. Tabish answered affirmatively. Later, the prosecutor asked Tabish if it is "common for ... children to disclose every detail [of sexual abuse] during the first disclosure." Tabish responded negatively. Loose's attorney objected to the line of questioning, and the trial court sustained the objection. Loose's attorney never asked to have Tabish's response stricken from the record.

¶ 7 The jury found Loose guilty of all four counts. Loose then moved for a new trial based on claims of trial error. After Loose had filed the motion, he learned of a letter which J.J. had written to a friend after the trial in which she stated that she had lied while testifying. Loose filed a supplemental motion for a new trial based on that letter claiming it to be newly discovered evidence. The trial court denied the motion for a new trial based on the arguments raised in the original motion. It then ordered a hearing to determine whether the newly discovered evidence would likely make a different result probable on retrial. Following the hearing, the trial court found that the letter was unlikely to bring about a more favorable result on retrial and denied the supplemental motion for a new trial.

¶ 8 On appeal, Loose argues that the trial court erred by failing to grant a new trial on any of several grounds. We first state the standard of review: we review the decision to grant or deny a motion for a new trial only for an abuse of discretion. See State v. Martin, 984 P.2d 975, 977

¶ 5 (Utah 1999) (citing Crookston v. Fire Ins. Exch., 860 P.2d 937, 938 (Utah 1993)). Any legal determinations made by the trial court as a basis for its denial of a new trial motion are reviewed for correctness. See Crookston, 860 P.2d at 938.

¶ 9 First, Loose argues that the erroneous admission of Tabish's testimony warrants a new trial. Loose challenges two aspects of Tabish's testimony. First, he contends that the recitation of what J.J. told Tabish in their first encounter was inadmissible hearsay because it did not qualify under section 76-5-411 of the Code. And as for Tabish's testimony about the characteristics of other abused children, Loose asserts that it was improper profile evidence offered to bolster J.J.'s credibility.

¶ 10 We reject the first contention. We agree with the trial court that Tabish's testimony was not admitted based on an exception to the hearsay rule contained in section 76-5-411 of the Code. Rather, the statements offered by Tabish were not hearsay because they were not offered for the truth of the matter asserted. Therefore, section 76-5-411 has no application.¹ ¶ 11 We also reject the challenge to the so-called "profile testimony." In State v. Kallin, 877 P.2d 138, 141 (Utah 1994), this court held admissible properly founded expert testimony that is limited to the statement that a particular child's behavior is "consistent with" symptoms that might be exhibited by one who was sexually abused. See id. We distinguished this testimony from that purporting to be based on a psychological profile of an abuse victim. See id. Here, Tabish testified based on his experience, not based on sexual abuse profiles, and as in Kallin, he did not testify that the symptoms exhibited by the child demonstrated that she was sexually abused. Rather, he said only that he had seen some of the behaviors he saw in J.J. in other children who had been sexually abused. Therefore, the trial court did not err in allowing Tabish to testify. It follows that the trial court properly denied the motion for a new trial grounded on these challenges.

¶ 12 Loose next argues that the trial court erred by denying his new trial motion to the extent it was based on the fact that J.J. read portions of a written statement she had prepared earlier. Loose argues that the statement was hearsay. In denying the motion for a new trial, the court held that the written statement was admissible non-hearsay. We agree.

¶ 13 Rule 801 provides:

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statements and the statement is ... (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication....

Utah R. Evid. 801(c), (d)(1)(B). J.J.'s statement falls within the description of a statement which is not hearsay. On redirect, the State had J.J. read portions of the statement in order to show that they were indeed consistent with her trial testimony. As we said in State v. Sibert, 6 Utah 2d 198, 203, 310 P.2d 388, 392 (1957), "When evidence of inconsistent statements has been introduced, or insinuations made by cross-examination that such inconsistent statements were uttered, it comports with reason and experience to admit prior consistent statements to rebut any inference that the witness was telling a recently fabricated story." The trial court did not err in refusing to grant a new trial based on this claim.

¶ 14 Loose's third argument is that the trial court erred in refusing to grant him a new trial based on its erroneous refusal to allow defense evidence regarding the poor state of Corey and Loose's marriage. Corey testified against Loose. The defense offered the testimony of Debbie Young, a family friend, to the effect that Corey had told her that the relationship was poor. The defense maintained that this evidence was relevant to Corey's credibility. The court denied the new trial, finding that it had properly excluded the evidence because whatever relevance and probative value it had was substantially outweighed by its potential for...