State v. Sellers

• Decision Date: 03 February 2011
• Docket Number: No. 20090196–CA.,20090196–CA.
• Citation: 675 Utah Adv. Rep. 6,2011 UT App 38,248 P.3d 70
• Parties: STATE of Utah, Plaintiff and Appellee,v.Justin Michael SELLERS, Defendant and Appellant.
• Court: Utah Court of Appeals

248 P.3d 70

675 Utah Adv. Rep. 6

2011 UT App 38

STATE of Utah, Plaintiff and Appellee,

v.Justin Michael SELLERS, Defendant and Appellant.

No. 20090196–CA.

Court of Appeals of Utah.

Feb. 3, 2011.

Lori J. Seppi, Salt Lake City, for Appellant.Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.Before Judges DAVIS, THORNE, and ROTH.

OPINION

ROTH, Judge:

¶ 1 Justin Michael Sellers challenges his conviction for aggravated sexual abuse of a child by raising five errors committed by the trial court and trial counsel. Because his claim of error in the voluntary intoxication jury instruction is well taken, we reverse and remand for a new trial.

BACKGROUND ¹

¶ 2 Sellers, an adult male, is a close friend of the thirteen-year-old complaining witness (Child) and her family. Although Sellers is not related to Child's family, he has periodically lived with them since he was fifteen and he has known Child since she was three. Child's mother (Mother) testified that she considered Sellers to be a son and that Sellers treated Child like a sister. Sellers was not living in Child's home on the night in question, but he regularly spent the night at her house, particularly after he had been drinking heavily. When he stayed over, Sellers slept in the living room, in Child's brother's room, or, most often, in Child's room. Although Mother and Sellers both reported ² that Child was generally not home when Sellers slept in her room, Child testified that Sellers slept in her bed with her “[s]o many times [she couldn't] ... keep track” but that Sellers had never before made any sexual advances towards her.

¶ 3 On May 29, 2007, Sellers attended a party at Child's home. Sellers became intoxicated and passed out in the street between 9:30 and 10:00 p.m. Mother and her husband managed to wake Sellers to bring him inside, and Mother told Sellers to sleep in her son's room. Sellers then passed out again so they left him on the floor outside of Mother's room. An hour or so later, as the family prepared to go to bed, Sellers regained consciousness. Mother again told Sellers, “ ‘You need to go to [my son]'s bed and pass out. You need to stay out of [Child]'s room.’ ” When everyone went to bed between 11:00 p.m. and 12:30 a.m., Sellers was asleep in the living room chair.

¶ 4 Sometime during the night, Sellers woke up, discovered he had urinated in his clothing, and took his pants off to dry them.³ After he had put his pants back on, he went to Child's room and got into her bed. At 5:00 a.m., Child awoke to find Sellers's hand down her pants inside her underwear and his finger in her vagina. Child slapped Sellers across the face, but he barely moved. Child took a shower, got ready for school, and waited in the living room until Mother awoke. She immediately told Mother what had happened. After Mother drove Child to school and went to work, she called the house and confronted Sellers with Child's accusations. Sellers said nothing and hung up the phone. When Mother subsequently searched Child's room, she found a pint of vodka, which was one-quarter to one-half empty, hidden behind the night stand. No one remembered seeing Sellers drinking from the bottle at the party. A few days later, Child and Mother reported the incident to the police. As a result, Sellers was charged with aggravated sexual abuse of a child, a first degree felony, see Utah Code Ann. § 76–5–404.1(4)– (5) (2008).⁴

¶ 5 To convict Sellers for aggravated sexual abuse of a child under the circumstances of this case, the State was required to prove that Sellers intentionally, knowingly, or recklessly touched the anus, buttocks, breast, or genitalia of Child, who was under the age of fourteen; that the touching involved the penetration, however slight, of Child's genital opening by any body part other than Sellers's genitals or mouth; and that he did so “with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person.” See id. § 76–5–404.1(1)–(2), (4)(j). The offense involves proof of two intent elements: a general intent to touch and a specific intent to cause pain or to arouse or gratify sexual desires. See generally id.; Adams v. State, 2005 UT 62, ¶ 21, 123 P.3d 400 (identifying the same two intent elements for the similar offense of forcible sexual abuse, which involves a victim over the age of fourteen). Sellers requested and received an instruction on the affirmative defense of voluntary intoxication as applied to the specific intent element. The instruction, however, failed to inform the jury that the State had the burden of disproving the voluntary intoxication defense beyond a reasonable doubt. Following deliberations, the jury convicted Sellers. Sellers now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 6 On appeal, Sellers alleges five errors that he asserts individually and cumulatively warrant reversal of his conviction. First, Sellers contends that the trial court failed to properly instruct the jury that the State bore the burden of disproving the affirmative defense of voluntary intoxication. Next, Sellers claims that the trial court admitted Detective Bell–Morley's opinion testimony about his level of inebriation in violation of rule 704 of the Utah Rules of Evidence because the testimony told the jury what outcome it should reach with regard to his intoxication defense. Sellers's third contention is that Detective Bell–Morley's testimony amounted to inadmissible expert testimony. His fourth argument is that Detective Bell–Morley improperly testified about Sellers's statements regarding Child's veracity. Finally, Sellers asserts that prior bad acts evidence was admitted despite the parties' stipulation to exclude such evidence.

¶ 7 Sellers failed to object to any of these claimed errors in the trial court, and therefore, his claims are not preserved for appeal. Sellers concedes as much but argues that he should nevertheless be heard on appeal because the omission of the burden of proof language from the voluntary intoxication instruction created a manifest injustice and the next three errors amounted to plain error. He also raises related ineffective assistance of counsel claims as to all five claimed errors. See generally State v. Lee, 2006 UT 5, ¶ 24, 128 P.3d 1179 (permitting appellate review of unpreserved claims for plain error, exceptional circumstances, and ineffective assistance of counsel).

¶ 8 When a defendant asserts an unpreserved jury instruction error on appeal on the basis that failure to review it would result in manifest injustice, we apply the same standard as we do for plain error review. See State v. Verde, 770 P.2d 116, 122 (Utah 1989). “To prevail under plain error review, a defendant must demonstrate that [1] an error exists; [2] the error should have been obvious to the trial court; and [3] the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (alterations in original) (internal quotation marks omitted).

¶ 9 We consider ineffective assistance of counsel claims raised for the first time on appeal as a matter of law. See State v. Tennyson, 850 P.2d 461, 466 (Utah Ct.App.1993). The burden rests on the defendant to demonstrate deficiency in counsel's performance and prejudice to the degree that “but for counsel's deficient performance there is a reasonable probability that the outcome of the trial would have been different,” Lee, 2006 UT 5, ¶ 37, 128 P.3d 1179 (internal quotation marks omitted); accord Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (observing that “a reasonable probability is a probability sufficient to undermine confidence in the outcome”), or stated in other words, the errors were “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable,” Strickland, 466 U.S. at 687, 104 S.Ct. 2052; accord State v. Archuleta, 747 P.2d 1019, 1023 (Utah 1987).

ANALYSIS

I. The Voluntary Intoxication Instruction

¶ 10 Sellers's first contention on appeal is that the trial court did not properly instruct the jury regarding the burden of proof associated with the affirmative defense of voluntary intoxication and that his trial counsel was ineffective because he failed to object. The contested intoxication instruction stated,

Voluntary intoxication is not a defense to a criminal charge unless such intoxication negates the existence of any mental state which is an element of the offense. Being voluntarily under the influence of alcohol or drugs is not a defense to the commission of a crime where it merely makes a person more excited or reckless so that he does something that he might not otherwise have done. Rather, to be a defense to a crime, one must be so under the influence of alcohol or drugs that at the time of the alleged offense he was then and there incapable of forming the intent or having the knowledge which is an element of that crime.

In this case, you are instructed that you may only consider the defense of voluntary intoxication with regard to whether the defendant acted with the intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person.

Sellers complains that the instruction does not “ ‘clearly’ instruct the jury that the State had to disprove the defense ‘beyond a reasonable doubt’ ” but instead “left the jurors free to infer ‘that the burden of proof was on either party.’ ” (Quoting State v. Garcia, 2001 UT App 19, ¶ 16, 18 P.3d 1123.)A. Manifest Injustice/Plain Error

¶ 11 Sellers's attorney neither proposed an instruction that properly informed the jury about the State's burden to disprove the affirmative defense nor objected to the instruction the court gave. “Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error...