State v. Walker

• Citation: 743 P.2d 191
• Decision Date: 25 August 1987
• Docket Number: No. 20921,20921
• Parties: STATE of Utah, Plaintiff and Respondent, v. Bryan WALKER, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 191

743 P.2d 191

STATE of Utah, Plaintiff and Respondent, v. Bryan WALKER, Defendant and Appellant.

No. 20921.

Supreme Court of Utah.

Aug. 25, 1987.

George B. Handy, Ogden, for defendant and appellant.

David L. Wilkinson, Earl F. Dorius, Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

Defendant was charged and convicted in a bench trial of two counts of aggravated sexual abuse of a child. He was thereafter sentenced to a statutory minimum mandatory sentence of three years to life on each count, both terms to run concurrently. Defendant has appealed on the ground that there was insufficient evidence to prove that he was an adult when he committed the offenses. He also raises four additional points on appeal: first, that the trial court erred in excluding the testimony of two defense witnesses; second, that the trial court erred in allowing certain witnesses to testify to out-of-court statements by the victims; third, that the prosecutor improperly led the victim witnesses in direct examination; and, fourth, that the court erred in not granting the defense motion for a new trial. We reverse on the ground of insufficiency of the evidence.

This Court has had a well-established standard of review of verdicts in criminal cases, which we have applied to both jury and bench verdicts. When reviewing the sufficiency of evidence supporting a conviction, we have said that we will overturn a verdict "only when the evidence is so lacking and insubstantial that a reasonable person could not have reached that verdict beyond a reasonable doubt." State v. Isaacson, 704 P.2d 555, 557 (Utah 1985); State v. Tanner, 675 P.2d 539, 550 (Utah 1983); State v. Petree, 659 P.2d 443, 444 (Utah 1983) (review of a jury verdict).

On January 1, 1987, however, new Utah Rule of Civil Procedure 52(a) took effect, providing:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58A; in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

(Emphasis added.) Rule 52(a) applies in criminal cases by virtue of Utah Code Ann. § 77-35-26(g) (1982), which provides: "The rules of civil procedure relating to appeals shall govern criminal appeals to the Supreme Court except as otherwise provided." See also Utah R.Civ.P. 81(e) (civil procedure rules apply in the absence of contradictory rule of criminal procedure).

The language of Rule 52(a) is similar to the Federal Rules of Civil Procedure. Federal case law has defined the standard of review in the federal rule and Wright &amp Miller summarizes that standard as follows:

[I]t is not accurate to say that the appellate court takes that view of the evidence that is most favorable to the appellee, that it assumes that all conflicts in the evidence were resolved in his favor, and that he must be given the benefit of all favorable inferences. All of this is true in reviewing a jury verdict. It is not true when it is findings of the court that are being reviewed. Instead, the appellate court may examine all of the evidence in the record. It will presume that the trial court relied only on evidence properly admissible in making its finding in the absence of a clear showing to the contrary. It must give great weight to the findings made and the inferences drawn by the trial judge, but it must reject his findings if it considers them to be clearly erroneous.

Wright & Miller, Federal Practice and Procedure § 2585 (1971) (citations omitted.)

The definition of "clearly erroneous" in the federal rule comes from United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948):

A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

Further clarification is offered by Wright & Miller:

The appellate court ... does not consider and weigh the evidence de novo. The mere fact that on the same evidence the appellate court might have reached a different result does not justify it in setting the findings aside. It may regard a finding as clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law.

Thus, the content of Rule 52(a)'s "clearly erroneous" standard, imported from the federal rule, requires that if the findings (or the trial court's verdict in a criminal case) are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings (or verdict) will be set aside.

Although we have applied the new Rule 52(a) since its effective date, see, e.g., Ashton v. Ashton, 733 P.2d 147 (Utah 1987); Lemon v. Coates, 735 P.2d 58 (Utah 1987), we have not examined the impact of drawing from the federal rules in the promulgation of our new Rule 52. Therefore, we disavow language in our earlier cases describing or implying a standard under new Rule 52(a) which differs in any significant respect from the standard of review applied in this case. We further specify that we will hereafter apply the standard adopted in this case to bench trials in criminal cases, and not the standard in State v. Isaacson, State v. Tanner, and State v. Petree. In that regard, we abandon the pre-Rule 52(a) position that the standard of review in criminal cases must be the same for both jury and bench verdicts. Not only does Rule 52(a) require this shift, but also we believe it to be an appropriate recognition of the relative deference owed to multi-member panel decisions as opposed to single-judge findings.

Having delineated the proper standard of review, we summarize the facts testified to at this trial. Defendant began babysitting for the victims, "J." and "T.," in the spring of 1983. Defendant cared for the girls for the last time on October 14, 1984, three days after his eighteenth birthday. Defendant testified that in November 1984, he contacted his bishop in the L.D.S. Church and told the bishop that he had "touched [J. and T.] in places that I shouldn't have" during the summer of 1983 but that nothing had happened since. The bishop referred defendant to a social worker with the Utah Division of Family Services (DFS), who interviewed defendant. Defendant testified that he also told the social worker that nothing improper had occurred since 1983. The social worker recommended that defendant talk to the victims' mother (Mrs. H.), who was very close to defendant and his family.

Defendant followed the social worker's recommendations and spoke with Mrs. H. in January 1985. Following that conversation, Mrs. H. contacted the police. She had an initial interview with Officer John Stallings and met subsequently with Officers Rose Hillman and Diane Hancock. Officer Hillman interviewed the victims at the police station, and Officer Hancock interviewed the victims at their home. At that time, the family lived in South Ogden. The evidence established that they had resided on Adams Street in Ogden until approximately February of 1984. The victims apparently stayed with defendant's family for several months (January to April) because their mother was having medical problems. Thereafter, in April of 1984, they moved to South Ogden.

Prior to trial, defendant made a motion to dismiss based on lack of jurisdiction in the district court. The trial court denied the motion and ruled that the issue of when the offense was committed should be determined at trial. The State's position was that defendant molested the children on the last occasion on which he cared for them, three days after his eighteenth birthday. Defendant maintained that the only instances of abuse occurred more than a year earlier, in the summer of 1983.

The victims gave extraordinarily confused and contradictory testimony at trial. T. and J., who were ten and six respectively at the time of trial, were both inarticulate and appear from the transcript to have been extremely intimidated by the courtroom setting. As a result, the trial court permitted the prosecutor to lead extensively, over the objection of defense counsel. Officer Hancock was allowed to testify, also over defense objection, to out-of-court statements made to her by the girls, some of which tended to show that the offenses were committed on the October date, or at least at the South Ogden residence. Similarly, a seventeen-year-old acquaintance of the victims was allowed to relate that T. had told her that the abuse occurred "five or ten" times and in South Ogden.

Mrs. H. testified that defendant told her the abuse had occurred "since" the summer of 1983, which she understood to mean that the abuse had been ongoing until a few months prior to their conversation in January.

Defense counsel called two witnesses, defendant's bishop and the DFS social worker he saw in November 1984, to testify about what defendant told them concerning the time the offenses occurred. After a proffer indicating they would testify that defendant told them the abuse occurred in 1983 and not thereafter, the trial court determined that defendant's out-of-court statements did not qualify as an exception to the hearsay rule under Rule 804(b) because they tended to "exonerate" him of the charge for which he was on trial by establishing his status as a juvenile.

Defendant took the stand and testified that the touching had only occurred...