State v. Roberts

• Decision Date: 10 January 2019
• Docket Number: No. 20170616-CA,20170616-CA
• Citation: 438 P.3d 885
• Parties: STATE of Utah, Appellee, v. Chad Jacob ROBERTS, Appellant.
• Court: Utah Court of Appeals

438 P.3d 885

STATE of Utah, Appellee,

v.Chad Jacob ROBERTS, Appellant.

No. 20170616-CA

Court of Appeals of Utah.

Filed January 10, 2019

Michael D. Esplin, Provo, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.

Opinion

POHLMAN, Judge:

¶1 Chad Jacob Roberts appeals his conviction for aggravated sexual abuse of a child and also seeks a remand under rule 23B of the Utah Rules of Appellate Procedure. We affirm Roberts's conviction and deny his motion for a rule 23B remand.

BACKGROUND¹

Sexual Abuse, Disclosure, and Investigation

¶2 Victim is the adoptive sister, and natural cousin, of Roberts. After their biological father relinquished his parental rights, Victim and her two older siblings (Sister and Brother) were adopted by Roberts's mother (Mother).² Roberts would frequently visit the house where Mother and Victim lived and would "cuddle" with Victim and Sister and read them books at bedtime. Often, Roberts would "fall asleep with them in the bed."

¶3 Once, when Victim was about seven years old and Roberts was in his mid-twenties, Roberts lay in Victim's bed and touched her vagina "skin-to-skin." He "cuddled up against [her] ... with his body pressed against [her] back" and then "put his hand down [her] underwear." Roberts "patted" Victim's vagina "a few times" and then "just rested [his hand] there" before resuming patting. This pattern continued for about thirty minutes. Eventually, Victim "got out of bed and went in the bathroom" because she "did not like what was happening." Thinking that Roberts had fallen asleep, Victim crawled back into her bed. Again, Roberts "cuddled up against [her] and put his hand down [her] pants." He did not say anything to Victim, or try to kiss or digitally penetrate her.

¶4 Because she "still loved and cared about" Roberts and was "happy living at" Mother's house, Victim "decided [she] was never going to tell anyone" what had happened that night. Then, nearly ten years later, she disclosed the touching to Brother and his fiancée (Fiancée). Victim had moved out of Mother's house and was living with her father, who testified that, prior to the move, Victim "was struggling" and had received treatment for "self-harming behaviors." While Victim was visiting Mother's house one day, she and Brother started drinking alcohol mixed with an energy drink. Brother and Fiancée mentioned to Victim that they planned on "getting a place" with Roberts. This made Victim fear that Roberts would abuse Fiancée. Victim then became "very drunk," and Brother and Fiancée took her to the mall to "walk it off." While there, Victim became "hysterical," "[fell] over in the parking lot," and repeated "over and over" that Roberts had raped her. Once she calmed down, Victim explained to Brother and Fiancée that Roberts "used to come lay in bed with her and touch her at night," but she did not offer any more details.

¶5 After this disclosure and a report made by Brother, police interviewed Roberts. Roberts admitted that he would sleep in Victim and Sister's bunkbed and "cuddle with them," but he denied ever touching Victim inappropriately. The police investigator asked whether on the night in question he could have touched Victim's vagina "accidentally," and Roberts responded, "Possibly," but denied that it would have been for sexual gratification.

Trial

¶6 At trial, the defense called Mother, who testified that Roberts and Victim had a "[l]oving, caring" relationship. She also testified that, although Roberts would cuddle with Victim and Sister, their room was not far from hers and their doors were "[a]lways open." On cross-examination, the prosecutor asked Mother whether she was ever interviewed by the Division of Child and Family Services (DCFS) "about [her] being emotionally abusive to" Victim. After Mother testified that she was aware of an accusation of emotional abuse but was not interviewed by DCFS, defense counsel objected to the line of questioning on relevance grounds. The trial court sustained the objection, and the prosecutor moved on to another topic.

¶7 Later, during closing argument, the prosecutor twice stated that Roberts's penis was "pressed up against" Victim's buttocks as he lay with her. The second time, after the prosecutor said that Roberts was "spooning with his front pushed against [Victim's] back with his penis around her buttocks," defense counsel objected. The trial court sustained the objection and explained to the jury that there was no evidence in the record of the "relative positions" of Roberts and Victim. The prosecutor then told the jury that it could use its "common sense understanding" to infer the relative positions of Roberts and Victim as they lay in the bed. Defense counsel did not renew the objection or ask the court to take any further action.

¶8 The defense's strategy at trial was to focus on Roberts's lack of sexual intent rather than attack the credibility of Victim, who had testified emotionally about the abuse. Roberts, who testified at trial, admitted that he cuddled with Victim and Sister and that he told police that he may have touched Victim's vagina accidentally, but he denied touching her with any sexual intent. In his closing argument, defense counsel stated that he did not think Victim was lying, and that the jury could believe both Victim and Roberts and still find Roberts not guilty. Counsel emphasized the isolated nature of the incident and argued that, because he did not have "the specific intent to arouse or gratify somebody's sexual desire," Roberts was not guilty.

¶9 At the close of evidence, the State asked the trial court "to expand [by one year] the time frame that was originally pled" in the information. Without hearing "much of an opposition" to such an amendment, the trial court granted the request. After being given instructions, including an instruction that counsel's "statements and arguments are not evidence," the jury retired to deliberate. When it returned, the jury convicted Roberts of aggravated sexual abuse of a child. Roberts appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Roberts raises several issues on appeal that can be separated into three categories. First, Roberts contends that the prosecutor made improper statements during closing argument that warranted a mistrial or a limiting instruction. Defense counsel did not request these remedies at trial, and Roberts asks us to review this unpreserved issue under the doctrines of plain error and ineffective assistance of counsel.³ See State v. Johnson , 2017 UT 76, ¶ 19, 416 P.3d 443 (explaining that plain error and ineffective assistance of counsel are exceptions to the preservation requirement). A trial court plainly errs when it commits obvious, prejudicial error. See State v. Griffin , 2016 UT 33, ¶ 17, 384 P.3d 186. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." Id. ¶ 16 (quotation simplified).

¶11 Second, Roberts contends that the prosecutor's inquiry of Mother about a DCFS investigation constituted prosecutorial misconduct and that defense counsel was constitutionally ineffective for not objecting sooner and moving to strike the testimony.⁴ This ineffective assistance claim again presents a question of law. Id.¶12 Finally, Roberts raises a number of other ineffective assistance claims relating to defense counsel's choices not to request a bill of particulars and not to attack Victim's credibility, which he asserts require a remand under rule 23B of the Utah Rules of Appellate Procedure. "A remand under rule 23B will only be granted upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." State v. Calvert , 2017 UT App 212, ¶ 56, 407 P.3d 1098 (quotation simplified).

ANALYSIS

I. Prosecutor's Comments During Closing Argument

¶13 Roberts first contends that the trial court "committed plain error by failing to sua sponte order a mistrial or by failing to give a limiting instruction to the jury" after the prosecutor twice remarked in closing that Roberts's penis was "pressed up against" Victim's buttocks. Alternatively, he contends that his defense counsel was constitutionally ineffective "by failing to move for a mistrial or request[ ] a specific" limiting instruction in response to those comments. We conclude, however, that a mistrial was not required here and that, even assuming a limiting instruction was required, the court adequately instructed the jury. We also conclude that Roberts's defense counsel was not ineffective in not requesting a mistrial or a limiting instruction.

A. Plain Error

¶14 Not "every misstep of counsel in closing amounts to plain error." State v. Hummel , 2017 UT 19, ¶ 110, 393 P.3d 314. "We must ask first whether counsel's missteps were so egregious that it would be plain error for the district court to decline to intervene sua sponte." Id. (emphasis omitted). And our supreme court has long recognized that prosecutors have "considerable latitude in their closing arguments." State v. Dibello , 780 P.2d 1221, 1225 (Utah 1989). Specifically, "[t]hey have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports," id. , and have "the duty and right to argue the case based on the total picture shown by the evidence," State v. Houston , 2015 UT 40, ¶ 76, 353 P.3d 55 (quotation simplified). Thus, the court "must be certain" that a prosecutor's statement is "both highly prejudicial and obviously" wrong before interrupting closing argument sua sponte. Hummel , 2017 UT 19, ¶ 119 n.35, 393 P.3d 314 ; see also State v. King , 2006 UT 3, ¶ 14, 131 P.3d 202 (observing that a "trial court should not assume the role of advocate" (quotation simplified) ).

¶15 Intervening by declaring a mistrial is a...