State v. Singh

• Decision Date: 17 November 2011
• Docket Number: No. 20091030–CA.,20091030–CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. BHAG SINGH, Defendant and Appellant.
• Court: Utah Court of Appeals

2011 UT App 396

267 P.3d 281

695 Utah Adv. Rep. 45

STATE of Utah, Plaintiff and Appellee,

v.BHAG SINGH, Defendant and Appellant.

No. 20091030–CA.

Court of Appeals of Utah.

Nov. 17, 2011.

David M. Perry, Logan, for Appellant.

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.

Before Judges ORME, ROTH, and CHRISTIANSEN.

MEMORANDUM DECISION

CHRISTIANSEN, Judge:

¶ 1 Defendant Bhag Singh appeals his conviction for sexual abuse of a child, see Utah Code Ann. § 76–5–404.1(2) (2008), following a bench trial. We affirm.

¶ 2 On appeal, Defendant contends that the trial court plainly erred in finding him guilty based on insufficient evidence; by not ensuring that Defendant knowingly, voluntarily, and intelligently waived his right to a jury trial; by granting the State's motion to allow two witnesses to testify via closed circuit television (CCTV); and by not following the requirements of rule 15.5 of the Utah Rules of Criminal Procedure to admit such testimony. In addition, Defendant claims that his counsel was ineffective for failing to object to the State's rule 15.5 motion, the State's motion to admit evidence of Defendant's prior bad act under rule 404(b) of the Utah Rules of Evidence, and when the State allegedly called Defendant a liar during closing argument. Finally, Defendant claims that the trial court abused its discretion when sentencing Defendant.

I. Inadequate Briefing

¶ 3 Defendant fails to properly brief most of his claims. “ ‘Our rules of appellate procedure clearly set forth the requirements that appellants and appellees must meet when submitting briefs before this court.’ ” Beehive Tel. Co. v. Public Serv. Comm'n, 2004 UT 18, ¶ 12, 89 P.3d 131 (quoting MacKay v. Hardy, 973 P.2d 941, 947–48 (Utah 1998)); see also Utah R.App. P. 24(a). An issue is inadequately briefed “when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998); see also State v. Honie, 2002 UT 4, ¶ 67, 57 P.3d 977 (“On appeal, the appellant is required to clearly define the issues and provide accompanying argument and authority; a reviewing court is not simply a depository in which the appealing party may dump the burden of argument and research.”), cert. denied, 537 U.S. 863, 123 S.Ct. 257, 154 L.Ed.2d 105 (2002).

¶ 4 Defendant fails to provide supporting record citations, ¹ see Utah R.App. P. 24(a)(9) (requiring an appellant to include “citations to the authorities, statutes, and parts of the record relied on”), makes conclusory statements about the elements of his ineffective assistance of counsel claims,² and fails to develop the legal authority that supports his arguments.³ See State v. Gamblin, 2000 UT 44, ¶¶ 6–7, 1 P.3d 1108 (explaining the briefing requirements for the argument section and determining that the appellant failed to meet the requirements when his “brief merely contain[ed] one or two sentences stating his argument generally, quote [d] favorable portions of the record, and then broadly conclude[d] that he [was] entitled to relief”). Accordingly, we decline to address his inadequately briefed arguments. See id. ¶ 8 (“Briefs that do not comply with rule 24 ‘may be disregarded or stricken, on motion or sua sponte by the court.’ ” (quoting Utah R.App. P. 24(j))). Thus, we address only Defendant's claims that insufficient evidence supported his conviction, that the trial court plainly erred by allowing the witnesses to testify via CCTV pursuant to rule 15.5 and by employing the procedure used during that testimony, and that the trial court plainly erred by failing to ensure that Defendant knowingly, voluntarily, and intelligently waived his right to a jury trial.

II. Insufficient Evidence

¶ 5 Defendant argues that the State presented insufficient evidence to support his conviction.⁴ “When reviewing a bench trial for sufficiency of [the] evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or ... the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.” See State v. Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252 (internal quotation marks omitted).

¶ 6 Specifically, Defendant asserts that the State produced no evidence to prove that he acted with an intent to arouse or sexually gratify himself. ⁵ Defendant acknowledges that the victim and another witness both testified to similar experiences with Defendant touching and kissing them, and acknowledges that the other witness's testimony “was important for the State in order to attempt to show the [Defendant's] state of mind ... when the touching of [the victim] occurred.” However, Defendant suggests that such testimony was incredible and that the court should have relied on Defendant's own testimony at trial that he was not aroused by his actions.

¶ 7 The trial court, rather than this court, is responsible for determining the credibility of a witness and assigning the proper weight to his or her testimony. See Salt Lake City v. Hughes, 2011 UT App 128, ¶ 5, 253 P.3d 1118 (mem.) (“In determining the facts, the trial court is in a unique position to assess the credibility of witnesses and weigh the evidence.... [W]e will not second-guess the trial court where there is a reasonable basis to support its findings.” (internal quotation marks omitted)); see also State v. Davis, 711 P.2d 232, 234 (Utah 1985) (per curiam) (“A contradictory version of the facts, without more, is not a ground for reversal. The trier of fact is not obliged to believe the claims of defendant's witnesses.” (citation omitted)). In finding Defendant guilty, the court clearly found the testimony of the victim and the other witness credible.

¶ 8 With the court's credibility determination in mind, we consider whether the evidence produced at trial was sufficient to establish Defendant's intent to arouse or sexually gratify himself. “[I]ntent is a state of mind generally to be inferred from the person's conduct viewed in light of all the accompanying circumstances.” State v. Watkins, 2011 UT App 96, ¶ 17, 250 P.3d 1019 (alteration in original) (internal quotation marks omitted), cert. granted, No. 20110458, 262 P.3d 1187 (Utah Aug. 4, 2011); see also Davis, 711 P.2d at 234 (“As to defendant's intent or state of mind, intent need not be proved by direct evidence, but may be inferred from defendant's conduct and surrounding circumstances.”).

¶ 9 The eleven-year-old victim testified that during a sleepover with Defendant's daughter (Daughter), Defendant came into Daughter's bedroom after Daughter had left the room but while Defendant's son was still in the room under the bed covers. Defendant sat on the bed next to the victim. As he told the victim that he liked her and loved her, Defendant moved closer to her. Defendant then told her again that he loved her and rubbed her breasts approximately three times in an up and down motion. Defendant then leaned in and kissed the victim, sticking his tongue into her mouth as he did so. Another witness also testified that while at a sleepover with Daughter, Defendant sat next to the witness on the bed after Daughter had left the room. Defendant told the witness that he loved her, kissed her on the mouth, and then wiped his saliva off her mouth.

¶ 10 Given the similarity of the witnesses' testimony regarding the sexual nature of Defendant's actions and the trial court's credibility determinations, sufficient evidence supported the court's inference that Defendant committed his acts against the victim with the intent to arouse or sexually gratify himself. See Watkins, 2011 UT App 96, ¶ 18, 250 P.3d 1019 (“The evidence indicated that [the defendant] kissed Child wetly on the side of her head for approximately three minutes and that [the defendant] pinched and rubbed her buttocks for approximately two minutes. It was reasonable for the jury to infer from these facts that [the defendant] intended to arouse or gratify his sexual desire, and there is not an alternative explanation for [the defendant's] actions such that reasonable minds must have entertained a reasonable doubt as to [the defendant's] intent.” (internal quotation marks omitted)); State v. Maness, 2010 UT App 370U, para. 4, 2010 WL 5452078 (mem.) (concluding that “the jury could properly draw the inference that defendant had the intent to arouse his own sexual desire” where he had “intentionally touched the victims' breasts and genitalia; did not obtain written permission from the victims before touching their breasts; manipulated the cloth drape, entered the room early, and lingered in the room following massages, allowing him to view the victims' naked bodies; touched the victims' genitalia during a massage procedure that should be performed without touching the genitalia; and touched the victims' breasts in a location and manner that would never be part of massage therapy, even if there had been written consent” (internal quotation marks omitted)); In re B.K., 2000 UT App 302U, 2000 WL 33243776, paras. 2, 4 (mem.) (per curiam) (affirming a conviction where the victim testified that the defendant digitally penetrated her vagina while pulling on her swimsuit and noting that because the court found the victim's testimony more credible than the defendant's testimony, the court “could properly draw the inference that [the] defendant had the intent to arouse or gratify his own sexual desire” (internal quotation marks omitted)); State v. Hall, 946 P.2d 712, 724 (Utah Ct.App.1997) (“The evidence, viewed in the light most favorable to the jury's verdict, established that defendant pulled down [the victim's] shorts and panties and stroked her on the genital area. From this evidence, the jury could properly draw the inference that defendant had the intent to arouse or gratify his own sexual desire.”), cert. denied, 953 P.2d 449 (Utah 1998).

III. CCTV Testimony

¶ 11 Defendant argues...