State v. Saunders

• Decision Date: 03 March 1995
• Docket Number: No. 930148-CA,930148-CA
• Citation: 893 P.2d 584
• Parties: STATE of Utah, Plaintiff and Appellee, v. Kirk Scott SAUNDERS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 584

893 P.2d 584

STATE of Utah, Plaintiff and Appellee, v. Kirk Scott SAUNDERS, Defendant and Appellant.

No. 930148-CA.

Court of Appeals of Utah.

March 3, 1995.

Rehearing Denied May 5, 1995.

Curtis C. Nesset, Salt Lake City, for defendant and appellant.

Thomas B. Brunker and Jan Graham, Salt Lake City, for plaintiff and appellee.

Before DAVIS, JACKSON and ORME, JJ.

OPINION

ORME, Presiding Judge:

Defendant Kirk Scott Saunders appeals his conviction for sexual abuse of a child, a second degree felony, in violation of Utah Code Ann. § 76-5-404.1 (1990). We affirm.

FACTS

"We recite the facts in the light most favorable to the jury's verdict." State v. Cosey, 873 P.2d 1177, 1178 (Utah App.), cert. denied, 883 P.2d 1359 (Utah 1994). Accord State v. Hamilton, 827 P.2d 232, 233 (Utah 1992).

In January 1980, defendant married. He and his wife had three children: a daughter, B.C.S., and two sons. The couple separated in September 1990. In accordance with the childrens' wishes and the couple's agreement, their mother had temporary custody of B.C.S. and one of the sons, while defendant had temporary custody of the third child. Neither parent had overnight visitation rights with the other child or children until February 1991.

In April 1991, Detective Michael Mitchell investigated allegations by B.C.S., who was seven at the time, that defendant had touched her inappropriately. Defendant explained to Detective Mitchell that B.C.S. had wet her pants, resulting in a rash on and around her buttocks and vaginal area, and he had applied Desitin ointment to treat the affected areas. No charges resulted from this investigation, but B.C.S.'s overnight visits with her father ceased temporarily.

In February 1992, B.C.S. resumed overnight visits with defendant. These visits continued intermittently until June 7, 1992. According to testimony, on approximately fifteen separate occasions during this timeframe, defendant rubbed B.C.S.'s vagina and chest with his hand.

Detective Mitchell again investigated the allegations of abuse, interviewing B.C.S. on July 9, 1992, and attempting to contact defendant. When his attempt to contact defendant failed, Detective Mitchell left a note on defendant's windshield asking defendant to call him. Defendant called back the following day and, when informed that Detective Mitchell wanted to speak to him about his daughter, defendant stated that he was going on vacation for two weeks and would call Detective Mitchell upon his return. Defendant left the state and failed to contact Detective Mitchell as promised. Defendant was arrested in Las Vegas, Nevada, on September 24, 1992.

The State charged defendant with one count of attempted rape of a child and one count of sexual abuse of a child. The case proceeded to trial. At the close of the State's case, the trial court granted the State's motion to dismiss the attempted rape of a child charge due to insufficient evidence. The jury convicted defendant of the remaining count of sexual abuse of a child. It is from this conviction that defendant now appeals.

ISSUES PRESENTED ON APPEAL

Defendant presents several issues on appeal. First, defendant claims the trial court erred by refusing to remove for cause a juror who claimed to have been sexually abused. Second, defendant challenges one of the trial court's jury instructions as violating the unanimity requirement. Third, defendant claims the prosecutor engaged in misconduct by eliciting testimony concerning prior bad acts allegedly committed by defendant. Finally, defendant asserts he was denied effective assistance of counsel. ¹

CHALLENGE FOR CAUSE

Defendant argues that the trial court committed reversible error by failing to remove a prospective juror for cause. The juror responded affirmatively to the trial court's inquiry as to whether any of the prospective jurors had "[b]een a victim of incest or molestation." Subsequently, both the trial court and defense counsel extensively questioned the juror in chambers regarding the nature of the abuse. During this individual voir dire, the juror revealed that she had been a victim of what she characterized as sexual abuse in 1989 and 1990, that she was eighteen years old at the time, and that the abuse was perpetrated by a boyfriend over the span of a few months. The trial court then asked the juror whether her experience would prevent her from being a fair and impartial juror. She answered that while the nature of the criminal charges at issue in defendant's case might make her uncomfortable, it would not impede her ability to be fair, and she specifically stated that she believed defendant to be innocent until proven guilty. Defendant challenged the juror for cause, but the trial court refused to dismiss her. Defendant used one of his peremptory challenges to remove her from the jury panel.

We review a trial court's decision not to dismiss a juror for cause under an abuse of discretion standard, finding error only when the record clearly indicates that the decision was unreasonable. State v. Olsen, 860 P.2d 332, 334 (Utah 1993); State v. Jonas, 793 P.2d 902, 906 (Utah App.), cert. denied, 804 P.2d 1232 (Utah 1990). In order to succeed on appeal, a defendant must show that a juror's responses to voir dire questions or other facts in the record raised an inference that the juror harbored some bias, and then demonstrate that the trial court failed to adequately probe and then rebut that inference. Jonas, 793 P.2d at 906-07. In addition, a defendant must show that the failure to remove the juror actually prejudiced his case. State v. Menzies, 889 P.2d 393, 398 (Utah 1994).

While it is doubtful that defendant could in any event demonstrate prejudice, see id.; State v. Carter, 888 P.2d 629, 648-49 (Utah 1995), we hold that no error was committed because the prospective juror's comments did not create an inference of partiality or prejudice against defendant. The juror was not the victim of a crime sufficiently similar to raise such an inference. The juror indicated her boyfriend sexually abused her after she reached adulthood. In contrast, the State charged defendant with multiple incidents of incestuous child sexual abuse. Moreover, subsequent questioning by both the trial court and defense counsel sufficiently dispelled any inference of bias that may have been raised by the juror's initial response. She unequivocally stated that she would be fair and impartial and believed defendant to be innocent until proven guilty. Her candid admission that she felt uncomfortable with the topic of sexual abuse does not automatically preclude her from objectively evaluating testimony that defendant might offer in opposition to the charges of sexual abuse. See State v. Bishop, 753 P.2d 439, 451-52 (Utah 1988).

We conclude that the trial court did not abuse its discretion in denying defendant's request that this prospective juror be excused from the jury for cause.

JURY UNANIMITY

Without objection from the defense, the trial court gave Instruction No. 26 to the jury. Instruction No. 26 reads as follows:

Before the jury arrives at a guilty verdict, the law requires that each of the jurors be satisfied beyond a reasonable doubt that an act alleged in the Information occurred. There is no requirement that the jurors be unanimous about precisely which act occurred or when or where the act or acts occurred. The only requirement is that each juror believe, beyond a reasonable doubt, that at least one prohibited act occurred sometime between October of 1991 and May of 1992, in Salt Lake County, involving the victim and the defendant.

Defendant now claims that because Instruction No. 26 allowed each juror to find that he committed only one act, while disbelieving he committed any other act, the instruction violated fundamental principles concerning jury unanimity because unanimity did not necessarily exist with respect to any one of the individual instances of criminal conduct attributed to defendant.

There can be no question that jury unanimity is necessary as to all elements of a crime. See Utah Const. art. I, § 10; Utah R.Crim.P. 21(b); Tillman v. Cook, 855 P.2d 211, 216 (Utah 1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 706, 126 L.Ed.2d 671 (1994); State v. Standiford, 769 P.2d 254, 257-58 (Utah 1988). In the case at hand, the trial court instructed the jury to that effect, and the jury unanimously found beyond a reasonable doubt that defendant was guilty of all of the elements of the charged offense. ² The narrow issue presented for review is whether Utah law requires the jury to be unanimous as to the specific incident or incidents of sexual abuse they believe defendant committed.

Because defendant failed to object to the allegedly erroneous instruction, we will reach the merits of defendant's claim only if the trial court committed plain error in giving the instruction. See State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993). To establish plain error, defendant must show the following: (1) the instruction was erroneous; (2) the error should have been obvious to the trial court; and (3) but for the error there would be "a reasonable likelihood of a more favorable outcome" for defendant, or stated another way, that the instruction "undermines our confidence in the verdict." Id.

Regardless of whether Instruction No. 26 was actually erroneous, ³ we cannot conclude that the instruction would have been obviously erroneous. Defendant concedes that his unanimity theory raises an issue of first impression in Utah. Therefore, nothing in the law of this jurisdiction notified the trial court that the instruction was obviously improper. Cf. State v. Eldredge, 773 P.2d 29, 35-36 (Utah) (error in failing to make written findings was not obvious where appellate decision establishing the requirement had not yet been decided and nothing in controlling statute required written findings), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989); State v. Braun...