State v. Tippets
| Decision Date | 15 July 2021 |
| Docket Number | No. 20190062-CA,20190062-CA |
| Citation | 2021 UT App 78 |
| Parties | STATE OF UTAH, Appellee, v. TREVOR TIPPETS, Appellant. |
| Court | Utah Court of Appeals |
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
Brett J. Delporto, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys for Appellee
1
¶1 Trevor Tippets was convicted of two counts of aggravated sexual abuse of a child based on two incidents involving his stepdaughter. Tippets subsequently filed a motion for a new trial, contending that his counsel had been ineffective in several ways. The district court denied that motion, entering findings of fact and conclusions of law on each of Tippets's claims. Tippets renews three of those contentions on appeal and argues that the cumulative effect of defense counsel's errors merits a new trial.
Because we conclude that counsel's performance was not deficient, we affirm Tippets's convictions.
¶2 Tippets's convictions arise from two incidents involving his stepdaughter (the victim) that occurred about one year apart. In the first incident, the victim, who was eleven years old, was sleeping on the floor in her room when "Tippets came into [her] bedroom and laid next to [her] on the floor." He first put his hand down her pants and touched her vagina under her clothing. She testified that she then heard a sound she would never forget—"the sound of him unzipping the zip of his pants." Tippets then "pulled out his penis," grabbed the victim's hand while she pretended to be asleep, "put his hand over [hers] and . . . started stroking his penis with [her] hand using [his] hand as the guide." This lasted for five to ten minutes. The victim tried to squirm and pull her hand away, but Tippets "grabbed [her] hand again and put it right back on to his penis." This touch was skin-to-skin, and she felt his penis harden. The victim remembered feeling "betrayed of [her] trust" and thinking, "[H]ow could you[?]" Tippets did not say anything to the victim on this occasion. Eventually, the victim "pretended to stretch and wake up" and locked herself in the bathroom and stayed there for the rest of the night.
¶3 By the time the second incident occurred, the victim had turned twelve and had moved into a friend's basement with Tippets and the rest of her family. The victim explained, "Sincewe moved around a lot, me and my brother had air mattresses and we decided to build an air mattress fort out of them" against the corner of a wall. She and her brother went to bed in the fort—the victim against a wall and her brother against one of the air mattresses—with space between them. About an hour after they went to bed, Tippets came into the fort and lay behind the victim, who was on her side with her arms crossed on her chest "like a dead person." Tippets lay behind her in a "spooning position," then put his hand over her hand on her breast, and "invited himself to caress [her] breasts for as long as he felt [he] needed, which was about two to five minutes." When he finished, Tippets moved the victim's hair from behind her ear, kissed her neck, and asked if she wanted to come watch a television show that she had asked to watch earlier that day. The victim testified that she felt especially concerned that this was occurring with her brother right behind them because Tippets "did not care who was around . . . he wanted to get what he wanted."
¶4 After eventually disclosing some details of the first incident to her mother and disclosing both incidents to her therapist, the victim told her story in a recorded interview with the Children's Justice Center (CJC). In that interview, the victim described Tippets putting her hand on his penis during the first incident but did not mention him putting his hand down her pants. She then described the second incident in which Tippets rubbed her back and then moved his hand around to the front, on top of her own hand across her chest, but did not describe how he used her hands to fondle her breasts.
¶5 After the CJC interview, the State charged Tippets with one count of aggravated sexual abuse of a child, based on the first incident. At Tippets's preliminary hearing, the victim elaborated on both incidents. First, she said that before Tippets unzipped his pants to pull out his penis during the first incident, he put hishand down her pants and rested it on her vagina. Describing the second incident, she testified that when Tippets put his hand over her hand, which was over her breast, he "was playing with [her] chest . . . squeezing it." After the preliminary hearing, the State amended Tippets's information to include a second count of aggravated sexual abuse based on the second incident.
¶6 The case proceeded to trial. In his opening statement, defense counsel said the victim likely would describe the first incident as Tippets putting his hand down her pants and resting it on her vagina and then forcing her to touch his penis and scrotum. On direct examination, however, the victim, who was now sixteen years old, did not make any reference to Tippets putting his hand down her pants or touching her vagina. Defense counsel confronted the victim on cross examination, asking her whether she remembered testifying at the preliminary hearing that Tippets put his hand down her pants during that incident. She confirmed that she did. Defense counsel did not specifically ask the victim whether Tippets rested his hand on her vagina, and she did not volunteer that information on the stand.
¶7 Regarding the second incident, defense counsel's opening statement described the victim's anticipated testimony as Tippets "squeez[ing] her hand [that was covering her breast] with his while [she was] fully clothed." The prosecutor's opening statement described the second incident as Tippets placing his hand "on her shirt" and then "touch[ing] her breasts," but also predicted that the victim would testify that Tippets's "hand was on her breast . . . skin-to-skin."
¶8 When the victim testified about the second incident, she first described Tippets's hand as "under" her bra. But after defense counsel confronted her with her preliminary hearing testimony, she acknowledged that her previous testimony was correct, that her "hand was in between" his hand and her breast. The victim testified,
¶9 During the course of the investigation, the assigned detective received a tip about a separate "untoward or sexual" incident that may have occurred between Tippets and a stepdaughter from a previous marriage. The detective did not verify the report.
¶10 The victim's mother testified at trial. At the end of cross examination, defense counsel elicited the following testimony:
Defense counsel argued, "even if Your Honor does rule that this . . . opens the door to character evidence, we ask that you keep it out in that it is . . . highly prejudicial." The prosecution responded that the testimony elicited by defense counsel had "impresse[d] upon the jury that the [the victim] is not credible because there are no other incidents" and "boost[ed] the credibility of [Tippets] in the eyes of the jury."
¶12 The court then asked the prosecutor to speak with the victim's mother and proffer what he believed her testimony would be. After speaking with the victim's mother, however, the prosecutor stated that "it turns out that she is not aware of any other sexual allegations from [Tippets's] prior marriages" so the State could not elicit that information from her. The court then asked if the State intended to "put on any evidence of any other abuse through any other witnesses," to which the prosecutor responded, "Even though the door may have been opened in regards to some disclosures, we do not have other witnesses that are going to be available, and frankly, we won't be able to overcome the hearsay objection."
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