State v. Tueller, 990820-CA.

• Decision Date: 25 October 2001
• Docket Number: No. 990820-CA.,990820-CA.
• Citation: 37 P.3d 1180,2001 UT App 317
• Parties: STATE of Utah, Plaintiff and Appellee, v. Ricky Allen TUELLER, Defendant and Appellant.
• Court: Utah Court of Appeals

37 P.3d 1180

2001 UT App 317

STATE of Utah, Plaintiff and Appellee, v. Ricky Allen TUELLER, Defendant and Appellant.

No. 990820-CA.

Court of Appeals of Utah.

October 25, 2001.

Stephen R. McCaughey, McCaughey & Metos, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General and Christine Soltis, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BENCH, BILLINGS, and DAVIS.

OPINION

BENCH, Judge:

¶ 1 Defendant Ricky Allen Tueller appeals his conviction for Sexual Abuse of a Child, a second degree felony, in violation of Utah Code Ann. § 76-5-404.1 (1999). We affirm.

BACKGROUND

¶ 2 "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237. On August 11, 1998, between 7:30 and 8:00 p.m., Ken Nielson went into the men's bathroom in the clubhouse of the trailer park where both Defendant and the victim (R.G.) lived. Mr. Nielson observed Defendant laying on top of R.G., a nine-year-old girl with an I.Q. of 60, on the bathroom floor. Mr. Nielson testified that Defendant's pants were pulled down to his buttocks and that R.G.'s panties were pulled down to her knees and her legs were "kind of open." Mr. Nielson also testified that Defendant had "one knee between" R.G.'s legs and his head on her chest.

¶ 3 Mr. Nielson worked as a maintenance man at the trailer park and recognized both Defendant, who was the father of one of his friends, and R.G., who lived near Defendant and often played with Defendant's children. Defendant and R.G. became aware of Mr. Nielson's presence, and immediately R.G. stood and pulled up her panties. Mr. Nielson called Defendant a "sick pervert or a sick bastard" and walked into the first stall.

¶ 4 Mr. Nielson heard Defendant and R.G. leave and decided to follow them. He checked the women's bathroom, then saw Defendant holding R.G. by the arm and walking her towards Defendant's trailer. Mr. Nielson went to the manager's office, and had the manager call the police.

¶ 5 The police arrived shortly after 8:00 p.m. and, after talking with Mr. Nielson about what he had seen, went to R.G.'s trailer. R.G.'s mother was not home and her father said he did not know where R.G. was. The police then went to Defendant's trailer and knocked on the door. When the door opened, R.G. ran towards her father, who was standing near the police officers. Officer Day, one of the responding officers, described R.G. as "visibly upset, trembling[,] some crying . . . kind of a loud, emotional outburst." At about 8:55 p.m., Detective Hudson interviewed R.G. and her mother, who had arrived in the interim. Detective Hudson described R.G.'s emotional condition much as Officer Day had, clinging to her mother, trembling, and crying in response to the detective's questions. During that interview, R.G. said that Defendant had asked her to go to the clubhouse bathroom. She then demonstrated where on her legs her panties had been pulled down to, but said that Defendant had not touched her "private parts."

¶ 6 Defendant was arrested and charged with sexual abuse of a child. In a subsequent trial, a jury convicted Defendant of the charged offense from which Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Defendant raises several issues on appeal. First, he argues that the trial judge was biased and should have recused himself. "Determining whether a trial judge committed error by failing to recuse himself ... is a question of law, and we review such questions for correctness." State v. Alonzo, 973 P.2d 975, 979 (Utah 1998). Second, Defendant argues that there was insufficient evidence to convict him. "We will overturn a conviction for insufficient evidence when it is apparent that there is not sufficient competent evidence as to each element of the crime charged for the fact-finder to find, beyond a reasonable doubt, that the defendant committed the crime." State v. Boyd, 2001 UT 30, ¶ 13, 25 P.3d 985 (internal quotations and citation omitted). Third, Defendant contends that the trial court erred when it included a jury instruction stating the jury had to acquit Defendant of the greater offense before it could consider the lesser offense. "Whether the trial court erred by mandating an order of deliberation in relation to the charged offense and the lesser included offense is a question of law, which we review for correctness." State v. Piansiaksone, 954 P.2d 861, 869 (Utah 1998). Finally, Defendant argues that the trial court erred in admitting the victim's out-of-court statements under the excited utterance exception to the hearsay rule. "We will not disturb a trial court's admission of evidence unless the court has clearly abused its discretion." West Valley v. Hutto, 2000 UT App 188, ¶ 9, 5 P.3d 1 (internal quotations and citation omitted).

ANALYSIS

I. Trial Judge's Recusal

¶ 8 Defendant acknowledges that he raises the issue of recusal for the first time on appeal. Therefore, he has not properly preserved it for review. See Straley v. Halliday, 2000 UT App 38, ¶ 9, 997 P.2d 338

. Defendant, however, implies that his trial counsel preserved the issue for appeal when, during a sidebar conference, he said, "I'm going to ask for a mistrial." Rule 29 of the Utah Rules of Criminal Procedure clearly requires that a motion to disqualify a judge "shall be accompanied by a certificate that the motion is filed in good faith and shall be supported by an affidavit stating facts sufficient to show bias or prejudice, or conflict of interest." Utah R.Crim. P. 29(c)(1)(a). Without having fulfilled the mandates of Rule 29, Defendant did not raise the issue of bias before the trial court to "a level of consciousness such that the trial judge [could] consider it." State v. Brown, 856 P.2d 358, 361 (Utah Ct.App.1993) (internal quotations and citations omitted).

¶ 9 Having failed to properly preserve the issue of judicial bias for our review, Defendant must show either "plain error" or "exceptional circumstances" before we can review this issue. State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (internal quotations omitted). To establish plain error, Defendant must show the following: "(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993). Defendant argues that the trial court erred when it (1) rehabilitated four potential jurors, but not a fifth, (2) admonished Defendant against signaling a testifying witness, and (3) discussed Defendant's violation of his pretrial release order.

¶ 10 "[A] question of potential [juror] bias arises when a prospective juror indicates that he or she has been the victim of a [crime similar to that with which the defendant is charged]." State v. Wach, 2001 UT 35, ¶ 29, 24 P.3d 948. "[W]hen such a question arises, the court ... must investigate further to determine if the juror can be impartial despite the past experience." Id. None of the five potential jurors had been a victim of sexual abuse, but they indicated that they knew or were related to people who had been. The trial court properly attempted to determine whether these jurors could be impartial by questioning them about their relationships with people they knew who had been victims of sexual abuse.

¶ 11 Defendant contends, however, that the trial court exhibited actual bias by not excusing the four jurors who knew victims of sexual abuse, while excusing the juror who was currently housing a victim who was also an alleged perpetrator. We grant the trial court considerable deference in its decisions to dismiss jurors for cause because we recognize "the trial judge's somewhat advantaged position in determining which persons would be fair and impartial jurors." Id. at ¶ 25 (internal quotations and citation omitted). Here, the four jurors not excused had relatives who had been sexually abused sometime in the past, whereas the juror who was excused had an alleged perpetrator then residing with her. We cannot conclude that this exercise of judicial discretion exhibited actual bias.¹ ¶ 12 We are also unconvinced by Defendant's assertion that the trial judge demonstrated actual bias when he admonished Defendant in the jury's presence about signaling a witness. We recognize that the trial judge has an "`advantaged position . . . to determine the impact of events occurring in the courtroom on the total proceedings.'" State v. Kohl, 2000 UT 35, ¶ 20, 999 P.2d 7 (citation omitted). The trial judge had the opportunity to observe Defendant as each witness testified and saw something during the testimony of Defendant's son that caused concern. It is reasonable to assume that if the judge noticed Defendant's hand movements, the jury might also have noticed them. Thus, we conclude that the trial judge acted within his discretion in responding to events in his courtroom.

¶ 13 The trial judge also adequately cured any appearance of impropriety by reminding the jurors that they were the "sole judges of the facts of the case and the credibility of witnesses." See Alonzo, 973 P.2d at 980

(holding trial judge's comments were not reversible error because he "sought to cure any perception of favoritism" by instructing the jury that it alone would determine the facts). The judge went even further in explaining to the jury that Defendant may have simply had an emotional response to a family member testifying, and that the judge had not specifically forewarned Defendant about making hand signals.

¶ 14 Finally, Defendant argues that the trial judge exhibited actual bias in discussing with counsel, out of the presence of the jury, possible witness tampering charges. Defendant's argument is without merit. We decline to discuss the propriety of the judge's comments as Defendant cannot show how, absent the judge's comments, the result would...