State v. McCloud

Decision Date03 November 2005
Docket NumberNo. 20030340-CA.,20030340-CA.
Citation2005 UT App 466,126 P.3d 775
PartiesSTATE of Utah, Plaintiff and Appellee, v. Larry McCLOUD, Defendant and Appellant.
CourtUtah Supreme Court

Elizabeth Hunt, Salt Lake City, for Appellant.

Mark L. Shurtleff, atty. gen., and Marian Decker, asst. atty. gen., Salt Lake City, for Appellee.

Before BILLINGS, P.J., BENCH, Associate P.J., and THORNE, Jr., J.

OPINION

BENCH, Associate Presiding Judge:

¶ 1 Defendant Larry McCloud appeals his conviction of one count of aggravated sexual abuse of a child, a first degree felony in violation of Utah Code section 76-5-404.1(4)(h), and three counts of sodomy on a child, first degree felonies in violation of Utah Code section 76-5-403.1. See Utah Code Ann. §§ 76-5-404.1(4)(h), -403.1 (2003). We affirm, but direct that the conviction of aggravated sexual abuse of a child be reduced to sexual abuse of a child.

BACKGROUND1

¶ 2 B.M., born in 1984, alleged that her father, McCloud, sexually molested her on several occasions during his post-divorce visits. The first act occurred in 1989, when B.M. was five, and consisted of McCloud sexually abusing B.M. in the shower. Additional acts of sexual contact occurred when B.M. was between the ages of seven and ten. In 1998, when she was fourteen, B.M. told a therapist about the shower incident. In 2000, after B.M. experienced continual weight loss, sleeplessness, and an attempted suicide, she began revealing all the incidents of sexual contact to various people including her mother, a psychiatrist, a psychologist, a biofeedback counselor, and a Utah Division of Child and Family Services caseworker.

¶ 3 McCloud maintains that he never had any sexual contact with B.M. When questioned by the police about the shower incident, in a delayed response, McCloud admitted to showering with B.M. to teach her how to wash her hair. He stated that his delayed response was out of concern that the police would see the incident as "dirty."

¶ 4 Ultimately, McCloud was arrested and bound over for trial. During the jury voir dire, one of the jurors, Juror Rodriguez, did not disclose certain information regarding her limited contact with sexually abused victims. After closing arguments, McCloud moved for a mistrial based on the prosecutor's closing statements. The district court subsequently denied McCloud's motion for a mistrial. The jury returned a verdict, convicting McCloud of aggravated sexual abuse of a child for the shower incident (Count 1), and three counts of sodomy on a child (Counts 3, 4, and 7). He was acquitted on the remaining three counts of sodomy (Counts 2, 5, and 6). McCloud motioned for a new trial, alleging juror misconduct and claiming that the district court applied an incorrect statute of limitations to Count 1. The district court denied McCloud's motion for a new trial. McCloud now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 5 McCloud first asserts that the correct statute of limitations bars the charge of aggravated sexual abuse of a child and that this error requires reversal on all counts and a new trial. McCloud did not raise this issue below, and thus, must show either plain error, ineffective assistance of counsel, or exceptional circumstances.2 See State v. Weaver, 2005 UT 49,¶ 18, 531 Utah Adv. Rep. 15 (stating that there are three instances when an issue may be raised for the first time on appeal: plain error, ineffective assistance of counsel, and exceptional circumstances).

¶ 6 Second, McCloud argues that the prosecutor's comments in closing arguments, stating that the defense had copies of B.M.'s prior interviews and testimonies and that her trial testimony had been consistent, amounts to prosecutorial misconduct. McCloud did not raise this issue below, and thus, must show either plain error, ineffective assistance of counsel, or exceptional circumstances. See id. ¶ 7 Third, McCloud contends that the district court erred in denying his motion for a new trial for juror misconduct. "When reviewing a trial court's denial of a motion for a new trial, we will not reverse absent a clear abuse of discretion by the trial court." State v. Pinder, 2005 UT 15,¶ 20, 114 P.3d 551 (citations and quotations omitted). The legal standards applied in denying the motion are reviewed for correctness, and the factual findings are reviewed for clear error. See id.

¶ 8 Fourth, McCloud asserts a new trial is required because the district court did not adequately cover voir dire instructions proposed by McCloud's trial counsel. McCloud did not raise this issue below, and thus, must show plain error, ineffective assistance of counsel, or exceptional circumstances. See Weaver, 2005 UT 49 at ¶ 18, 122 P.3d 566.

¶ 9 Fifth, McCloud contends that the district court erred in denying his motion for mistrial where the court allowed the jury to convict on the basis of proof that was a year off the charged date. This court reviews a district court's ruling on a mistrial motion for an abuse of discretion. See State v. Cram, 2002 UT 37,¶ 6, 46 P.3d 230.

¶ 10 Finally, McCloud argues that the reasonable doubt jury instructions were inadequate. McCloud did not raise this issue below, and thus, must show plain error, ineffective assistance of counsel, or exceptional circumstances. See Weaver, 2005 UT 49 at ¶ 18, 122 P.3d 566.

ANALYSIS
I. Statute of Limitations

¶ 11 McCloud asserts that the correct statute of limitations bars Count 1, aggravated sexual abuse of a child. On appeal, the parties concede that the incorrect statute of limitations for Count 1 was applied at the trial level. After the trial in this case, the Utah Supreme Court in State v. Lusk, 2001 UT 102, 37 P.3d 1103, clarified a statutory amendment. In 1996, the legislature added aggravated sexual abuse to those offenses qualifying for an extended statute of limitations of four years after the report of the crime. See id. at ¶ 16. Prior to 1996, aggravated sexual abuse of a child was part of the general catchall statute of limitations of just four years after the act. See id. at ¶ 13; Utah Code Ann. § 76-1-302(1)(a) (1978). The court in Lusk held that the 1996 amendment cannot be applied retroactively to cases wherein the four year catchall statute of limitations had expired prior to 1996. See id. at ¶¶ 25-31. In this case, Count 1 took place in 1989; therefore, the claim expired in 1993, precluding the application of the 1996 amendment.

¶ 12 Claiming plain error, ineffective assistance of counsel, and exceptional circumstances, McCloud contends that the correct statute of limitations must be applied. In order to establish plain error, McCloud must show: "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). The statute of limitations is a defense that may be waived. See James v. Galetka, 965 P.2d 567, 572-573 (Utah Ct.App.1998). Because the statute of limitations is a waivable defense, the district court did not commit plain error by not invoking the defense on behalf of McCloud.

¶ 13 To establish ineffective assistance of counsel, McCloud must demonstrate that trial counsel's performance "was deficient, in that it fell below an objective standard of reasonable professional judgment" and that the performance was prejudicial. State v. Litherland, 2000 UT 76,¶ 19, 12 P.3d 92. The law at issue here was not clear until after trial, when the Utah Supreme Court decided Lusk. McCloud therefore cannot show that his trial counsel rendered deficient performance by not knowing at trial that the amended statute of limitations did not apply to Count 1.

¶ 14 Though McCloud has failed to demonstrate either plain error or ineffective assistance of counsel, we can apply the exceptional circumstances concept to avoid a manifest injustice. See State v. Nelson-Waggoner, 2004 UT 29,¶ 23, 94 P.3d 186. This concept "is used sparingly, properly reserved for truly exceptional situations . . . involving `rare procedural anomalies.'" State v. Irwin, 924 P.2d 5, 11 (Utah Ct.App.1996) (quoting Dunn, 850 P.2d at 1209 n. 3). The Utah Supreme Court has applied this concept "where a change in law or the settled interpretation of law colored the failure to have raised an issue at trial." Id. at 10; see also State v. Lopez 873 P.2d 1127, 1134 n. 2 (Utah 1994); State v. Haston, 846 P.2d 1276, 1277 (Utah 1993).

¶ 15 Although the statute of limitations was unclear at the time of trial, the law has now been clarified. Based on exceptional circumstances, McCloud asserts that the statute of limitations entitles him to a new trial. A new trial, however, is not necessary. Each element of the lesser included offense of sexual abuse of a child on Count 1 was established at trial, and that offense is not barred by the statute of limitations.3 For the jury to convict for aggravated sexual abuse under Utah Code section 76-5-404.1, it had to find the elements of sexual abuse plus one other factor — that McCloud held a "position of special trust in relation to" B.M. Utah Code Ann. § 76-5-404.1(4)(h) (2003). "[T]here is no question that the jury found beyond a reasonable doubt all the facts necessary to convict" McCloud of sexual abuse of a child for Count 1, which charge was not time barred. Dunn, 850 P.2d at 1212. Therefore, based on exceptional circumstances, we vacate the conviction for aggravated sexual abuse of a child on Count 1 and remand the case for resentencing for the lesser included offense of sexual abuse of a child. See id. (holding that the appellate court may enter a judgment of a lesser included offense if the trier of fact found each element of the offense and the error in the conviction of the greater offense did not affect the findings of the lesser offense); State v. Lyman, 966 P.2d 278, 285 (Utah Ct.App.1998) (stating that the appellate court may enter judgment for misdemeanor theft where evidence supports such conviction though it did not support the felony...

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    • United States
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