State v. Modes
| Decision Date | 01 October 2020 |
| Docket Number | No. 20180265-CA,20180265-CA |
| Citation | 475 P.3d 153 |
| Parties | STATE of Utah, Appellee, v. Frank Val MODES, Appellant. |
| Court | Utah Court of Appeals |
Gregory G. Skordas, Salt Lake City, Kaytlin V. Beckett, and Gabriela Mena, Attorneys for Appellant
Sean D. Reyes, Salt Lake City and Lindsey L. Wheeler, Attorneys for Appellee
Amended Opinion1
¶1 Frank Val Modes was convicted of aggravated sexual abuse of a child (Victim). He appeals, alleging that the trial court erred by admitting evidence that he had previously committed acts of child molestation and that his trial counsel was ineffective. We affirm.
¶2 Modes was Victim's uncle through marriage; his wife (Wife) and Victim's mother (Mother) are sisters.2 Modes was also the "best friend" and a cousin of Victim's father (Father).
¶3 In the early 2000s, Modes and Wife operated a licensed daycare in their home. While Wife managed the day-to-day operation of the daycare, Modes was occasionally left alone with the children during naptime. From around 2000—when Victim was five months old—until 2004, Victim attended Wife's daycare. When Victim was four years old and at the daycare, Modes woke her and other young girls from their nap and forced them to take off their shirts and lie down together. Modes then exposed his penis, touched the girls, and masturbated. Victim further revealed how Modes abused her in private at the daycare: In describing this abuse, she said,
¶4 Victim recalls being "scared" to tell anybody about what Modes was doing to her. But Mother noticed a change in Victim's behavior when Victim was about three or four years old and she began to act out sexually at her house. Mother suspected that "somebody was showing her that or teaching her something." About this same time, Mother became aware that Modes had been accused of molesting two other girls in the daycare. At that point, Mother removed Victim from the daycare.
¶5 Growing up, Victim experienced a number of emotional and physical problems, including vomiting, shaking, hyperventilating, difficulty communicating with strangers, "always looking over her shoulder," night terrors, and fear of being alone with men. Because Wife used bleach to clean the daycare's floors, Victim said that the odor of bleach "[brought] up those feelings" and "memories" of being abused and made her "feel sick." Victim reported the abuse some years later—when she was fourteen years old—to Mother and to a counselor. The abuse was then reported to the police, and an investigation ensued.3
¶6 In October 2014, a detective interviewed Victim at the Children's Justice Center (CJC). When the detective asked about the abuse, Victim The detective ended the interview. Two years later, a second detective conducted another interview with Victim at the CJC. He testified that Victim "began to cry" and her "voice began to crackle" as she told him about the abuse. Modes was charged with aggravated sexual abuse of a child.
¶7 At trial, pursuant to rule 404(c) of the Utah Rules of Evidence, the State presented evidence that Modes had previously molested another child (Prior Victim) at the daycare. In addition to admitting into evidence a certified copy of Modes's conviction of sexual battery for his abuse of Prior Victim, Prior Victim testified. Prior Victim stated that she had attended Wife's daycare when she was six or seven years old and that she called Modes "Uncle Frank" despite being unrelated to him. She further revealed that Modes would call her "his girlfriend ... to make [her] feel special." Prior Victim revealed that Modes made her sit on his lap, close her eyes, and stick her fingers in her mouth. Modes also made her straddle his hips with her legs and put her hands around his shoulders as he moved his hips and put "his private parts up against [her private parts]." Prior Victim testified that Modes unbuttoned his pants and tugged at her pants while he engaged in this abusive behavior. She revealed that this happened "a couple of times." Prior Victim also described another incident in which Modes derived a "sick pleasure" from making her lie down with a boy at the daycare and "kiss" and "make out" with him. When Prior Victim told Modes that she did not want to do that, he said, "[Y]ou need to do it for your uncle."
¶8 At the close of the State's case, Modes moved for a directed verdict to dismiss the charge, arguing that the State had failed to establish a "timeline" of "when the abuse took place" or "anything specific upon which to convict" Modes. The State responded that a date and time were not elements of the offense, and therefore any lack of specificity about when the abuse occurred did not require dismissal of the charges. The trial court agreed with the State and denied the motion.
¶9 At trial, Modes's defense consisted of denying that he abused Victim. He asserted that he was not living at the house where the daycare was located when the abuse allegedly occurred, that he was never alone with the children in the daycare, and that at the time of the alleged abuse, he had a back injury that prevented him from lifting more than ten pounds.
¶10 The trial court, in a bench trial, found Modes guilty as charged. Specifically, the court found the testimonies of Victim, Mother, Prior Victim, and other prosecution witnesses credible and Modes's testimony not credible. In its conclusions of law, the court stated that Modes occupied a position of trust in relation to Victim, took indecent liberties with and touched the genitalia of Victim with the intent to gratify his sexual desire, caused Victim pain by digitally penetrating her vagina, and had previously been convicted of sexual battery. The court sentenced Modes to a prison term of fifteen years to life for aggravated sexual abuse of a child. Modes appeals.
¶11 We first address whether the court erred in admitting the details of Modes's prior acts of child molestation, including testimony of Prior Victim, pursuant to rule 404(c) of the Utah Rules of Evidence. Because no objection was made at trial, we review this issue for plain error. See State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346 ().
¶12 We next address whether Modes's attorney performed deficiently by (1) failing to object to the admission of Prior Victim's testimony, (2) failing to cross-examine Prior Victim, and (3) not calling an expert witness on the issue of early childhood memory recovery.4 "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Reyos , 2018 UT App 134, ¶ 11, 427 P.3d 1203 (quotation simplified).5
¶13 Modes argues that the trial court plainly erred when it admitted the testimony of Prior Victim pursuant to rule 404(c) of the Utah Rules of Evidence and that this evidence was unfairly prejudicial. To prevail on this unpreserved claim, see supra ¶ 11, Modes must demonstrate plain error by establishing that State v. Johnson , 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation simplified).
¶14 As a general rule, evidence of a person's other acts "is not admissible to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character." Utah R. Evid. 404(b)(1). For evidence of other acts to be admissible pursuant to rule 404(b), the State must articulate a nonpropensity purpose for the evidence. State v. Fredrick , 2019 UT App 152, ¶ 41, 450 P.3d 1154. But this limitation does not apply in child molestation cases, where rule 404(c) applies. "The drafters of our rules of evidence have determined, as a policy matter, that propensity evidence in child molestation cases can come in on its own terms, as propensity evidence, even if there is no other plausible or avowed purpose for such evidence." Id. ¶ 42. And the Utah Rules of Evidence provide that when a "defendant is accused of child molestation, the court may admit evidence that the defendant committed any other acts of child molestation to prove a propensity to commit the crime charged." Utah R. Evid. 404(c)(1).
¶15 Modes asserts that Prior Victim's testimony contained "extraneous and inflammatory details ... not contemplated under [ rule] 404(c)." Relying on State v. Cuttler , 2015 UT 95, 367 P.3d 981, Modes argues that the trial court erred in allowing Prior Victim to testify in "graphic detail" about the abuse she suffered at the hands of Modes, asserting that Prior Victim's testimony went "far beyond the scope of propensity" and was thus "improper and inherently prejudicial" and "served no other purpose ... than prejudicing" him. But Modes does not identify which statements of Prior Victim should not have been admitted; rather, he argues that "[n]one of [Prior Victim's] statements were necessary to the admission of evidence under 404(c) or properly admissible under 404(c)." Thus from Modes's perspective, evidence of his acts of prior molestation should...
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State v. Guerro
..."because we conclude that there are no errors to accumulate here, the cumulative error doctrine is inapplicable in this case." State v. Modes , 2020 UT App 136, ¶ 12 n.5, 475 P.3d 153 (cleaned to the record in an effort to prove ineffective assistance of counsel is a rule 23B motion. Guerro......
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State v. Barnes
...error challenge on appeal. Because we do not see any single error, Barnes cannot succeed in a cumulative error challenge. See State v. Modes, 2020 UT App 136, ¶ 12 475 P.3d 153 ("Because we conclude that there are no errors to accumulate here, the cumulative error doctrine is inapplicable i......