State v. Moore

• Decision Date: 16 August 2012
• Docket Number: No. 20100477–CA.,20100477–CA.
• Citation: 2012 UT App 227,285 P.3d 809,715 Utah Adv. Rep. 27
• Parties: STATE of Utah, Plaintiff and Appellee, v. Richard L. MOORE, Defendant and Appellant.
• Court: Utah Court of Appeals

285 P.3d 809

715 Utah Adv. Rep. 27

2012 UT App 227

STATE of Utah, Plaintiff and Appellee,

v.Richard L. MOORE, Defendant and Appellant.

No. 20100477–CA.

Court of Appeals of Utah.

Aug. 16, 2012.

Samuel P. Newton, Kalispell, Montana, for Appellant.

Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee.

Before Judges McHUGH, VOROS, and ROTH.

MEMORANDUM DECISION

ROTH, Judge:

¶ 1 Richard L. Moore appeals from his conviction for sexual abuse of a child, a second degree felony, seeUtah Code Ann. § 76–5–404.1(2)–(3) (2008).¹ Moore argues that the trial court plainly erred in admitting out-of-court statements that he claims were hearsay and that trial counsel was ineffective because counsel failed to object to the admission of that hearsay evidence. Moore also contends that there was insufficient evidence to convict him. We affirm.

¶ 2 “On appeal, we recite the facts in the light most favorable to the jury's verdict.” State v. Burk, 839 P.2d 880, 882 (Utah Ct.App.1992). Moore was convicted of sexually abusing the eight-year-old daughter (Child) of his ex-girlfriend (Mother). The abuse occurred while Mother and her children were visiting Moore, who remained a close friend of the family even after he and Mother were no longer romantically involved. During their visit to Moore's home, Moore invited the family to watch a DVD in his living room. While Child was sitting on Moore's lap, Moore “slipped” his hand under Child's skirt through the leg band of her underwear and “touched [her] vagina.” Child did not immediately react to the touching.

¶ 3 After they returned home that night, however, Child told her sister (Sister), “I need to tell you something.” According to Sister, Child started crying as she told Sister that Moore touched her “ ‘ “really, really bad” ’ ” on her “ ‘pee-pee.’ ” ² Sister then told Child to “ ‘tell Mom.’ ” While Child did tell Mother that Moore touched her vagina inside of her underwear, when she did so was disputed. Child recalled telling her the night of the incident, but Mother thought it was about a month later. Prior to trial, the State moved to have Child's statements to Sister and Mother admitted. Moore's attorney represented that he “was not going to object to that information.”

I. Hearsay

¶ 4 Moore now contends that the trial court committed plain error in admitting Child's out-of-court statements to Sister and Mother and that his counsel was ineffective for failing to object to admission of Child's statements to Sister and Mother because those statements constituted inadmissible hearsay.

¶ 5 To establish plain error, the defendant must demonstrate that an error occurred, the error was or should have been obvious, and the error was prejudicial. See State v. Casey, 2003 UT 55, ¶ 41, 82 P.3d 1106. With respect to his plain error claim, Moore argues that the trial court failed to determine whether Child's out-of-court statements were reliable before allowing them to be presented to the jury. According to Moore, trial courts have an independent obligation to assess the reliability of a child-victim's out-of-court statements in sexual abuse cases prior to admitting them. In support of his position, Moore relies on cases applying Utah Code section 76–5–411, which required a judge to make findings that the “interest of justice” would be served by allowing a child-victim's out-of-court statements to be admitted, see State v. Nelson, 725 P.2d 1353, 1355 n. 3 (Utah 1986) (requiring the court to make an in-depth evaluation of the proposed evidence under the factors identified in section 76–5–411); see also State v. Matsamas, 808 P.2d 1048, 1051 (Utah 1991) (placing special emphasis on the reliability of the out-of-court statements from the child), and rule 15.5 of the Utah Rules of Criminal Procedure, which governs admission of recordings of out-of-court statements of a child-witness. Section 76–5–411, however, was repealed in 2009 and was no longer in effect by the time of the March 2010 trial. See generallyUtah Code Ann. § 76–5–411 repeals (Supp. 2012). Furthermore, we are not persuaded that rule 15.5 is applicable under these circumstances-rule 15.5 applies to the admission of recordings of out-of-court statements, whereas this case involved live testimony from Child, Sister, and Mother. SeeUtah R.Crim. P. 15.5. Because Moore has failed to explain how case law applying section 76–5–411 and rule 15.5 extends to this situation where neither appear to be applicable, he has not established any obvious error by the trial court. See generally Casey, 2003 UT 55, ¶ 41, 82 P.3d 1106 (explaining that if a defendant fails to show an obvious error, his plain error claim fails). Moreover, in the trial court, defense counsel expressly stated that he would not object to the admission of Child's out-of-court statements. Such a concession results in invited error, which precludes plain error review in any event. See State v. Hall, 946 P.2d 712, 716 (Utah Ct.App.1997) (stating that Utah appellate courts will decline to consider a claim of plain error if defense counsel made a “ ‘conscious decision to refrain from objecting’ ” or “ ‘led the trial court into error’ ” (quoting State v. Bullock, 791 P.2d 155, 158 (Utah 1989))).

¶ 6 Moore also challenges the admission of the out-of-court statements under the doctrine of ineffective assistance of counsel.

To establish ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient, in that it fell below an objective standard of reasonableness and (2) counsel's performance was prejudicial in that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.

State v. Maestas, 2012 UT App 53, ¶ 57, 272 P.3d 769 (internal quotation marks omitted). An ineffective assistance of counsel claim will fail if a “conceivable legitimate tactic or strategy can be surmised from counsel's actions.” State v. Tennyson, 850 P.2d 461, 468 (Utah Ct.App.1993). There is a strong presumption that trial counsel was competent and effective. See Benvenuto v. State, 2007 UT 53, ¶ 19, 165 P.3d 1195.

¶ 7 In its brief, the State has posited a “conceivable legitimate” strategic basis for defense counsel's decision not to object to the admission of the statements. See generally Tennyson, 850 P.2d at 468. At trial, Moore presented a theory that Mother induced Child to fabricate the allegation that he touched Child's vagina in retaliation for his refusing to help Mother move to a new residence. He explained that while Child was sitting in his lap, her skirt bunched up and he realized his hand was resting on her bare thigh. Child pulled her skirt down, and Moore immediately removed his hand. It is this accidental touch that he claims was woven into a false allegation that he touched Child's vagina after Mother became angry that he had refused to help her move.

¶ 8 In furtherance of the fabrication defense, defense counsel elicited, during cross-examination, Child's prior statements to Sister and Mother to highlight that Child had described the touch as occurring not only on her vagina but also over her underwear and on her inner thigh. Defense counsel attempted to use these inconsistencies to undercut Child's credibility and strengthen the defense's theory that her story was a fabrication and that Moore's claim that he accidentally touched Child's thigh was more consistent with the facts. In so doing, defense counsel necessarily balanced the risk of allowing admission of Child's statements at trial against the chance that inconsistencies in those statements would help Moore's case. See generally State v. Franco, 2012 UT App 200, ¶ 10, 283 P.3d 1004 (noting that trial counsel's performance cannot be deemed deficient based simply on the fact that, after diligently weighing the relative risks and benefits of the available strategic approaches, defense counsel chose a strategy that was ultimately unsuccessful); cf. State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (attributing defense counsel's decision not to object to witness testimony that may have been inadmissible opinion testimony to a “reasonable tactical choice” because it gave him “considerableleverage in discrediting that testimony during cross-examination”). It is not appropriate for an appellate court, in hindsight, to second guess the strategy of defense counsel. See Franco, 2012 UT App 200, ¶ 7, 283 P.3d 1004;State v. Charles, 2011 UT App 291, ¶ 29, 263 P.3d 469. Because undercutting the credibility of witnesses and strengthening a defense theory are legitimate tactics, defense counsel's decision not to object to the prior statements was not deficient.

¶ 9 Further, it is not apparent that Child's statements to Sister and Mother were in fact inadmissible, in which case trial counsel's performance cannot be deemed ineffective. See Maestas, 2012 UT App 53, ¶ 57, 272 P.3d 769 (treating counsel's performance as deficient if it “fell below an objective standard of reasonableness” (internal quotation marks omitted)); id. (defining prejudice as “a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different” (internal quotation marks omitted)).

A statement ... is not hearsay[ if] ... [t]he declarant testifies [at trial] and is subject to cross-examination about a prior statement, and the statement ... is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying....

Utah R. Evid. 801(d)(1)(B). Prior consistent statements may be admitted, however, “ ‘only when those statements were made before the charged recent fabrication.’ ” State v. Bujan, 2008 UT 47, ¶ 8, 190 P.3d 1255 (quoting Tome v. United States, 513 U.S. 150, 167, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995)).

¶ 10 Moore claimed that the allegation that he...