State v. Patterson

• Decision Date: 10 January 2013
• Docket Number: No. 20100243–CA.,20100243–CA.
• Citation: 725 Utah Adv. Rep. 32,294 P.3d 662
• Parties: STATE of Utah, Plaintiff and Appellee, v. Scott Kirby PATTERSON, Defendant and Appellant.
• Court: Utah Court of Appeals

294 P.3d 662

725 Utah Adv. Rep. 32

STATE of Utah, Plaintiff and Appellee,

v.Scott Kirby PATTERSON, Defendant and Appellant.

No. 20100243–CA.

Court of Appeals of Utah.

Jan. 10, 2013.

Edwin S. Wall, Attorney for Appellant.

John E. Swallow and Ryan D. Tenney, Attorneys for Appellee.

OPINION

DAVIS, Judge:

¶ 1Scott Kirby Patterson appeals his convictions of two counts of aggravated sex abuse of a child and two counts of lewdness involving a child.See generallyUtah Code Ann. § 76–5–404.1(4)(LexisNexis 2012);id.§ 76–9–702.5.¹We affirm.

BACKGROUND

¶ 2 Patterson's convictions arose out of a ten-month period beginning in February 2008, during which he abused his step-daughter (Child), while married to Child's mother(Mother).²Child disclosed the abuse to Mother on the first night that it happened.Mother confronted Patterson in front of Child that night, and he denied the allegations.Mother also asked Child whether she was “really sure” about her accusations and told Child, “[I]f [Patterson]'s done this ... [we] will be fine, we'll go get us an apartment.We're going to move out.We'll be okay, you know, it doesn't matter....”Child, the next morning, decided that she“didn't want to move” because she“liked where [they] were and ... liked [Patterson]” and that she“just didn't want to change [her] life just like that,” so she decided to tell Mother to “forget about it” and to “put it behind,” and that “it might have been a dream,” even though Child knew that “it wasn't a dream.”

¶ 3 Shortly after Christmas that year, Mother confronted Patterson again after realizing that both Child's and Patterson's behavior had changed over the last few months and that the changes had started after Child accused Patterson of abuse in February.On December 27, 2008, Patterson admitted to Mother that he had molested Child twice.Mother immediately planned to move out of the house and filed for divorce on December 29, and in the process she called an ecclesiastical leader from her church (Bishop) to explain the situation and ask for his help.On February 9, 2009, Patterson was charged with two counts of aggravated sexual abuse of a child and two counts of lewdness involving a child.

¶ 4 Patterson also reached out to Bishop for help, meeting him at his office several months after Mother moved out.Patterson later described his meeting with Bishop as “confidential clergy-penitent communication” that involved “discussions about confession in the church.”Nonetheless, after Patterson was charged, he offered Bishop's name as a character reference to the medical professional (Doctor) retained by his trial counsel to prepare a psychosexual evaluation of Patterson; the evaluation was to be used in plea negotiations and, if necessary, during sentencing.The psychosexual evaluation contains Bishop's statement to Doctor that Patterson “told [him] how sorry he was for what he has done.”Because of this statement in the psychosexual evaluation, the State, during a recess in the middle of the trial and before Patterson had testified, indicated to Patterson's trial counsel that the State would use Patterson's communication with Bishop to impeach Patterson's testimony denying the abuse.Patterson decided to heed his trial counsel's advice and not testify, even though both he and his trial counsel later testified that they were prepared for him to take the stand.³

¶ 5 At trial, the defense posed the theory that Child's allegations were fabricated and used as leverage by a “very vindictive”Mother during her and Patterson's divorce.Throughout the trial, testimony was elicited from both Mother and Child that suggested Patterson was an angry person, who could be frightening at times.Mother's testimony also described some of the details of their divorce and indicated that Patterson got most of the assets because she did not “want to deal with him anymore.”Defense counsel used these comments to support the theory that Child is a liar and that Mother convinced Child to fabricate the charges out of bitterness and to gain leverage in the divorce.One of the detectives (Detective) present during Child's interview at the Children's Justice Center (CJC) also testified at trial.Detective's testimony addressed the consistency between Child's trial testimony and her CJC interview.

¶ 6 Patterson was convicted of all four charges and appealed.This court granted in part and denied in part Patterson's motion to remand pursuant to rule 23B of the Utah Rules of Appellate Procedure.See generallyUtah R.App. P. 23B(a)(permitting remand to the trial court“for entry of findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel”).Our order for remand specified,

This matter is remanded to the district court for an evidentiary hearing for the limited purpose of entering findings of fact relevant to the determination of whether trial counsel's actions in advising Patterson not to testify on his own behalf, due to counsel's concern that the prosecutor would either question Patterson concerning communications he made to his bishop or would call the bishop to impeach Patterson's testimony, constituted ineffective assistance of counsel.

The trial court entered findings on this issue, and the case was returned to this court.

ISSUES AND STANDARDS OF REVIEW

¶ 7We address several issues on appeal.First, Patterson argues that his attorneys were ineffective for advising him not to testify in light of the State's threat to use Bishop's statements to impeach him when the clergy-penitent privilege would have prohibited admission of Bishop's comments.“In ruling on an ineffective assistance claim following a Rule 23B hearing, we defer to the trial court's findings of fact, but review its legal conclusions for correctness.”State v. Bredehoft,966 P.2d 285, 289(Utah Ct.App.1998)(citation and internal quotation marks omitted).

¶ 8 Patterson also argues that his trial attorneys were ineffective for failing to object to impermissible character evidence that came in through Child's and Mother's testimonies, and for failing to object to Detective's testimony regarding Child's character for truthfulness.“An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.”State v. Ott,2010 UT 1, ¶ 16, 247 P.3d 344(citation and internal quotation marks omitted).

¶ 9 Last, Patterson asserts that the trial court committed plain error by allowing character evidence to be admitted and by permitting Detective to testify to Child's character for truthfulness.To prevail on a claim of plain error, Patterson must show that an error occurred at trial; “that the error should have been obvious to the trial court[;] and that the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.”State v. Boyd,2001 UT 30, ¶ 21, 25 P.3d 985(citation and internal quotation marks omitted).

ANALYSIS

I. Clergy–Penitent Privilege

¶ 10 Patterson argues that he“was denied effective assistance of counsel when [his trial attorneys] failed to advise him of the clergy-penitent privilege and did not assert it at trial,” thereby leading Patterson to decide against testifying despite his earlier plan to testify.⁴Because this issue was addressedin the rule 23B hearing, we defer to the trial court's factual findings.SeeBredehoft,966 P.2d at 289.To succeed on an ineffective assistance of trial counsel claim, “a defendant must ... demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment,” and “that counsel's deficient performance was prejudicial—i.e., that it affected the outcome of the case.”State v. Litherland,2000 UT 76, ¶ 19, 12 P.3d 92(citingStrickland v. Washington,466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984)).“Defendant not only has the burden of meeting both prongs of this test, but must also overcome ‘a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ”State v. Snyder,860 P.2d 351, 354(Utah Ct.App.1993)(quotingStrickland,466 U.S. at 689, 104 S.Ct. 2052).“Additionally, because both deficiency and prejudice must be shown, a reviewing court can dispose of an ineffectiveness claim on either ground.”State v. Bair,2012 UT App 106, ¶ 49, 275 P.3d 1050(citation and internal quotation marks omitted).

¶ 11 This ineffectiveness argument rests on the applicability of the clergy-penitent privilege and whether Patterson waived it by permitting Doctor to contact Bishop.The clergy-penitent privilege is established by rule 503 of the Utah Rules of Evidence,⁵ which states,

A person has a privilege to refuse to disclose, and to prevent another from disclosing, any confidential communication: (1) made to a cleric in the cleric's religious capacity; and (2) necessary and proper to enable the cleric to discharge the function of the cleric's office according to the usual course of practice or discipline.

Utah R. Evid. 503(b);see alsoid.R. 503(a)(defining “cleric” as “a minister, priest, rabbi, or other similar functionary of a religious organization or an individual reasonably believed to be so by the person consulting that individual,” and defining “confidential communication” as “a communication: (A) made privately; and (B) not intended for further disclosure except to other persons in furtherance of the purpose of the communication”);id.R. 503(c)(including among the people who can claim the privilege “the person who made the confidential communication” and “the person who was the cleric at the time of the communication on behalf of the communicant”).The privilege protects both penitential and nonpenitential communications.SeeScott v. Hammock,870 P.2d 947, 950 & n. 2(Utah1994)(interpreting the privilege...