State v. Selzer

• Decision Date: 04 January 2013
• Docket Number: No. 20090352–CA.,20090352–CA.
• Citation: 725 Utah Adv. Rep. 36,294 P.3d 617
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jon SELZER, Defendant and Appellant.
• Court: Utah Court of Appeals

294 P.3d 617

725 Utah Adv. Rep. 36

STATE of Utah, Plaintiff and Appellee,

v.Jon SELZER, Defendant and Appellant.

No. 20090352–CA.

Court of Appeals of Utah.

Jan. 4, 2013.

Ann P. Boyle and Michael D. Esplin, for Appellant.

Mark L. Shurtleff and Ryan D. Tenney, for Appellee.

Opinion

THORNE, Judge:

¶ 1 Jon Selzer appeals from his convictions on two counts of aggravated sexual assault, arguing that he received ineffective assistance of counsel and that his convictions are barred by the rule against multiple prosecutions arising from a single criminal episode. We affirm.

BACKGROUND ¹

¶ 2 Selzer and his live-in girlfriend, S.G., spent the day and evening of May 31, 2008, drinking vodka together in their home and continued doing so into the early morning hours of June 1. Around 3:00 a.m., Selzer got into the shower and S.G. joined him. S.G. thought that Selzer was behaving strangely in the shower, and she got out of the shower and went to the couple's bedroom.

¶ 3 As S.G. was toweling off, Selzer entered the bedroom and demanded oral sex. S.G. said no and told him, “I don't want to do this.” Selzer responded, “You're my woman. You're supposed to do these things.” Selzer then forced S.G. to perform oral sex on him. S.G. did not attempt to pull away because she was scared of the way that Selzer was acting. Selzer then told S.G. to lie down on the bed and had intercourse with her. S.G. repeatedly told him to stop and to get off of her, and Selzer responded by squeezing her throat with his hand. S.G. continued to resist until Selzer finally stopped.

¶ 4 S.G. was distraught and went to the kitchen to have a drink and calm down. She eventually decided to walk to a nearby gas station to buy cigarettes, and Selzer joined her. On the way to the store, Selzer knocked S.G. to the ground and began hitting her and verbally berating her. Selzer continued this behavior until they reached the gas station at about 5:45 a.m., where the two entered and made their cigarette purchase. As soon as they left the gas station, Selzer began hitting S.G. again. The gas station attendant saw this assault and heard S.G. yell, “[P]lease, please don't hurt me any more.” The attendant called 911, and police officers arrived to see Selzer with his hands around S.G.'s neck.

¶ 5 The officers arrested Selzer, who admitted to them that he had been “pushing [S.G.] around ... a little.” S.G. was hysterical and told the officers that Selzer had been trying to kill her. The officers observed that S.G. had red marks on her face, had cuts and scrapes on her arms and hands, and was bleeding from the mouth. However, S.G. did not inform officers at this time that Selzer had also sexually assaulted her.

¶ 6 After Selzer was arrested, S.G. went home to care for her child and eventually took the child to his father's motel room, where S.G. slept the rest of the day. When she awoke in the evening, her child's father convinced her that she should go to the hospital to get examined. She went to the emergency room and informed medical personnel that she had been sexually assaulted. She was then examined by Dr. Steven Embley and Susan Chasson, a trained sexual assault nurse. The examination revealed a small tear on S.G.'s labia as well as redness to the roof of S.G.'s mouth.

¶ 7 Selzer's physical and sexual assaults on S.G. resulted in two separate prosecutions. On June 2, 2008, the Provo City prosecutor's office charged Selzer in district court with class B misdemeanor assault and class A misdemeanor violation of a domestic violence no-contact order. The assault charge related to Selzer's hitting and choking S.G. at the gas station. The violation of a no-contact order apparently occurred shortly after Selzer had been arrested, when he phoned S.G. and began berating her again. Selzer was arraigned on these charges on June 12 and pleaded guilty to both charges on August 21.

¶ 8 On June 10, 2008, the Utah County Attorney initiated the instant prosecution by charging Selzer with two first degree felony counts of aggravated sexual assault and one third degree felony count of domestic violence aggravated assault.² These charges arose from S.G.'s interview with police following her sexual assault report and examination. On November 12, 2008, Selzer filed a motion to dismiss all of the outstanding charges against him, alleging that they arose out of a single criminal episode which included the misdemeanor assault (the gas station assault) that he had pleaded guilty to in the separate prosecution by Provo City and were therefore barred by Utah Code sections 76–1–402 and –403. See generallyUtah Code Ann. § 76–1–402 (LexisNexis 2008) (requiring that multiple offenses arising out of a single criminal episode generally be tried in a single trial); id.§ 76–1–403 (generally barring subsequent prosecutions after an initial prosecution for offenses arising out of a single criminal episode). The district court granted Selzer's motion as to the domestic violence aggravated assault charge, but allowed the aggravated sexual assault charges to proceed to trial.

¶ 9 Prior to trial, the State gave notice that it intended to call Dr. Embley and Nurse Chasson as expert witnesses regarding their examination of S.G. Thereafter, Selzer successfully sought a trial continuance to prepare a response to Embley and Chasson's testimony. Selzer's counsel had difficulty contacting his preferred sexual assault expert, Sue Bryner–Brown, and was referred to another sexual assault nurse, Diane Crockett. Crockett reviewed the S.G. examination report and pictures of S.G.'s injuries and concluded that the injuries to S.G.'s mouth and labia were consistent with both consensual and nonconsensual sexual activity. Selzer's counsel asked Crockett if the State's experts would have to concede that the injuries were consistent with consensual as well as nonconsensual sex, and Crockett told him that she thought they would have to. Relying on Crockett's evaluation and advice, Selzer's counsel did not interview the State's experts, nor did he retain Crockett or any other expert to testify at trial.

¶ 10 At trial, Embley and Chasson both testified that S.G.'s injuries were consistent with nonconsensual sex. Further, and particularly with regard to the labial tearing, both experts testified that the injuries were unlikely to have resulted from consensual sex. Chasson testified that she had never seen a mouth injury similar to S.G.'s outside of the context of sexual assault and that she had never seen a similar labial injury resulting from consensual sexual activity. However, both experts conceded that it was possible that the injuries to S.G.'s mouth and labia were not caused by forcible sex. S.G., the gas station attendant, and Selzer himself also testified at trial. The jury ultimately convicted Selzer on both aggravated sexual assault counts, and he now appeals.

¶ 11 This court granted Selzer's request for a rule 23B remand to address the issue of trial counsel's effectiveness regarding the decision not to present expert testimony that S.G.'s mouth and labia injuries were consistent with consensual sexual activity. See generallyUtah R.App. P. 23B (allowing an appellate court to remand a criminal matter 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). On remand, the district court heard testimony from Selzer's trial counsel and from Bryner–Brown, the sexual assault nurse counsel had attempted to contact before trial.

¶ 12 Among the district court's factual findings after the hearing were that Selzer's counsel was surprised by Chasson's trial testimony that she had never seen similar injuries resulting from consensual sex, that counsel was unable to refute Chasson's testimony because he had not retained an expert, and that counsel believed this failure was prejudicial to Selzer because the remaining testimony against him was not overwhelming. The district court also found that Bryner–Brown would have testified that the redness to the roof of S.G.'s mouth could have been caused by many things besides forced oral sex, that the hallmark injuries of forced oral sex—bruising to the back of the throat and the back of the lips—were not present, that she had seen greater labial injuries resulting from consensual sex, and that labial injuries similar to S.G.'s were just as consistent with consensual sex as with nonconsensual sex.

ISSUES AND STANDARDS OF REVIEW

¶ 13 On appeal, Selzer argues that his trial counsel provided ineffective assistance by failing to adequately investigate the State's experts and failing to present rebuttal expert testimony that S.G.'s mouth and labia injuries were consistent with consensual sex. “In ruling on an ineffective assistance claim following a [r]ule 23B hearing, we defer to the trial court's findings of fact, but review its legal conclusions for correctness.” State v. Arriaga, 2012 UT App 295, ¶ 11, 288 P.3d 588 (alteration in original) (citation and internal quotation marks omitted).

¶ 14 Selzer also argues that his convictions are barred because they arise from the same criminal episode as the misdemeanor assault to which he had previously pleaded guilty. Therefore, Selzer argues, the district court erred when it denied his motion to dismiss. “A trial court's decision to grant or deny a motion to dismiss presents a question of law, which we review for correctness.” State v. Horrocks, 2001 UT App 4, ¶ 10, 17 P.3d 1145.

ANALYSIS

I. Ineffective Assistance of Counsel

¶ 15 Selzer first argues that his trial counsel performed ineffectively by failing to adequately prepare for and counter the testimony of the State's expert witnesses. Specifically, Selzer argues that his trial counsel had a duty to interview Embley and Chasson prior to trial and that these interviews would have revealed the need to retain a defense expert to testify that S.G.'s mouth and labia injuries were consistent with...