State v. Saunders

• Decision Date: 11 June 1999
• Docket Number: No. 950295.,950295.
• Citation: 992 P.2d 951,1999 UT 59
• Parties: STATE of Utah, Plaintiff and Respondent, v. Kirk Scott SAUNDERS, Defendant and Petitioner.
• Court: Utah Supreme Court

992 P.2d 951

1999 UT 59

STATE of Utah, Plaintiff and Respondent, v. Kirk Scott SAUNDERS, Defendant and Petitioner.

No. 950295.

Supreme Court of Utah.

June 11, 1999.

Rehearing Denied November 23, 1999.

Jan Graham, Att'y Gen., Thomas Brunker, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Curtis C. Nesset, Athens, Ga, for defendant.

On Certiorari to the Utah Court of Appeals

STEWART, Justice:

¶ 1 Kirk Scott Saunders was convicted of one count of sexual abuse of a child pursuant to Utah Code Ann. § 76-5-401.1 (1990). The Court of Appeals affirmed, State v. Saunders, 893 P.2d 584, 592-93 (Utah Ct.App. 1995), and we issued a writ of certiorari to review that court's decision. 910 P.2d 425 (Utah 1995). We now reverse and remand.

I. FACTS

¶ 2 Defendant married Deborah Smith in January 1980. They had three children, a girl (B.C.) and two sons. The couple separated in September 1990, and according to the children's choices, Ms. Smith obtained temporary custody of B.C. and the youngest son, and defendant obtained temporary custody of the oldest son. At the time of trial, the youngest son was eight years old, B.C. was nine years old, and the oldest son was eleven years old. The parents had no overnight visitation privileges with their noncustodial children until February 1991. In early 1991, after the separation and while divorce proceedings were pending, B.C. began periodic overnight visits to her father's apartment. The relationship between defendant and his wife during the divorce proceedings was characterized by hostility, acrimony, and bitterness that resulted in numerous court appearances. The divorce decree was entered in April 1992.

¶ 3 In April 1991, Ms. Smith called detective Michael Mitchell of the West Valley Police Department. He talked with B.C. concerning an allegation that defendant had touched her inappropriately. When Detective Mitchell questioned defendant, he apparently explained that B.C. had a rash, or chaffing, in her crotch and buttocks area as a result of having wet her pants and that he had applied a medicated ointment, Desitin, to the affected areas. No charges were filed. Sometime thereafter, both B.C.'s and her brother's overnight visits with their father were suspended, and B.C. began therapy. In October 1991, B.C. turned eight. The visits resumed in late 1991 or early 1992 and continued until June 1992, during which time B.C. slept in the apartment of defendant's friend, Rita Aagard Bybee, pursuant to an agreement with B.C.'s mother.

¶ 4 In early June 1992, B.C.'s parents had a quarrel relating to payment of child support. The following week, B.C.'s mother again called Detective Mitchell. Following Mitchell's investigation, the State in mid-June 1992 charged defendant with one count of attempted rape of a child and one count of sexual abuse of a child. The information did not allege that those acts occurred at any particular time or place but only that they occurred "on or about October 1991 through May 1992."

¶ 5 At trial, B.C., then aged nine, gave somewhat conflicting, confused testimony as to defendant's acts. She obviously had been coached, as evidenced by her use of adult anatomical vocabulary and conclusory legal terminology, such as that she had been "sexually abused" by her father. She could not remember how many times he had "sexually abused her." When asked to guess, she guessed "at least 15" times, but what she may have meant was that she guessed that he had applied Desitin to her fifteen times, because she later stated that her father had applied a yellow salve on fifteen occasions. She then stated, on the State's direct examination, that those events had occurred in 1991, when she was in the second grade, i.e., prior to the period charged in the information. Still later, she testified that defendant had touched her "around" sixteen times without salve, but she then stated that he had touched her with salve in 1992.¹ In closing argument, the prosecutor asserted that defendant had touched B.C. illegally thirty-one times. On appeal, the State now asserts some fifteen touchings but does not state whether that was with or without Desitin. B.C. also testified that defendant had "rubbed" her "breasts" with his hand on two occasions. She did not link any of the genital touchings to any specific date or event, although she did state that defendant had touched her during her last visit to his apartment, apparently shortly before the 1992 abuse allegations were made. Except for one occurrence that B.C. said took place in the apartment of Rita Bybee, the occurrences took place in defendant's living room. B.C. also stated that each time defendant touched her, they both had their clothes on, but on occasion defendant touched her underneath her underwear. B.C.'s brothers were either outside playing or asleep on the living room floor during these occasions. The last incident took place in June 1992. B.C. acknowledged that she had on occasion wet her pants and that defendant had applied a salve to treat a rash.

¶ 6 Defendant testified that both B.C. and her younger brother had bladder incontinence problems and that on at least one occasion B.C. had both wet and soiled her pants. He stated that he had applied Desitin to B.C.'s vaginal and buttocks area to treat a diaper rash-like irritation caused by the wetting but had done so no more than five times. On cross-examination, he testified that each such instance took place prior to the period charged in the information and that he had not touched B.C.'s genital area after Detective Mitchell talked to him in April 1991, including any time during the period charged in the information.

¶ 7 Saunders made a pretrial motion in limine to bar evidence pertaining to preinformation touching of his daughter. The trial court denied the motion and instead entered an order affirmatively allowing the prosecution to adduce preinformation evidence of defendant's conduct with respect to B.C. The order also provided that defendant would have to object to preinformation evidence of a specific nature, and the court would then rule on the objection. All of defendant's objections to preinformation evidence at trial were overruled. On the State's motion at the close of evidence, the court dismissed the attempted rape charge for insufficient evidence. The jury found Saunders guilty of one count of sexual abuse.

¶ 8 On appeal to the Court of Appeals, Saunders argued that the conviction should be reversed because (1) the prosecutor was guilty of misconduct in eliciting testimony concerning Saunders' conduct prior to the period charged in the information and in arguing that the jury should convict because of that conduct; (2) jury instruction 26 violated the constitutional requirement that jurors be unanimous in returning a guilty verdict; (3) the trial court erred in refusing to remove for cause a juror who had been sexually abused; and (4) he was denied effective assistance of counsel. A number of other issues were also raised; the Court of Appeals summarily disposed of them. See Saunders, 893 P.2d at 587

& n. 1.

¶ 9 The Court of Appeals rejected Saunders' argument that he prosecutor's references to allegations of defendant's preinformation criminal conduct constituted prejudicial misconduct by the prosecutor. That court stated: "The prosecutor's comments were undeniably at odds with the court's [pretrial in limine] order in that the prosecutor discussed details of the 1991 investigation. It also appears that these comments were used to imply defendant's guilt based on his prior acts, and, if viewed in isolation, they might well constitute prosecutorial misconduct." Id. at 590. Nevertheless, the Court of Appeals concluded that the comments did not constitute misconduct because "it was defendant, not the prosecutor, who initially introduced a detailed version of what proved to be the 1991 incidents" through his own testimony. Id. at 591. The Court of Appeals ruled that defendant had opened the door to the 1991 evidence and, therefore, the prosecution was free to explore the subject of the 1991 investigation.

¶ 10 The court also held that any error in instruction 26 on jury unanimity was not plain error because the question of whether the jury had to be unanimous as to a specific incident or incidents of sexual abuse was a question of first impression in Utah and that "Utah cases considering jury unanimity in other contexts provide no uniform rule that, by extension, would have made it obvious to the trial court that Instruction No. 26 would be erroneous." Id. at 589.

¶ 11 We granted defendant's petition for a writ of certiorari. State v. Saunders, 910 P.2d 425 (Utah 1995). Defendant argues that the Court of Appeals erred in holding that (1) the prosecutor was not guilty of misconduct in arguing that the jury should consider evidence that Saunders abused B.C. in 1991 in the context of the 1992 charges; (2) the trial court did not err in refusing to allow defense counsel to question prospective jurors on voir dire concerning any specialized knowledge they might have concerning sexual abuse of children; (3) jury instruction 26 did not constitute plain error; and (4) State v. Menzies, 889 P.2d 393 (Utah 1994), which held that defendants must prove actual prejudice when a trial court erroneously fails to grant a for-cause challenge to a prospective juror, applied retroactively.

II. PLAIN ERROR IN THE ADMISSION OF EVIDENCE OF DEFENDANT'S ALLEGED PRIOR CRIMINAL CONDUCT AND IN THE PROSECUTOR'S CLOSING ARGUMENT TO THE JURY

¶ 12 We are acutely aware of the heinous nature of child sexual abuse and the deep scars and long-lasting effects that sexual abuse of a child has on the victims. We are also acutely aware of the evidentiary difficulties that sometimes confront both the prosecution and the defendant in litigating such cases. Sexual abuse of children is usually committed covertly, and sometimes evidence is hard to discover. On the other hand, defendants...