State v. Whytock

• Decision Date: 16 July 2020
• Docket Number: No. 20180440-CA,20180440-CA
• Citation: 469 P.3d 1150
• Parties: STATE of Utah, Appellee, v. Donnald Lee WHYTOCK, Appellant.
• Court: Utah Court of Appeals

469 P.3d 1150

STATE of Utah, Appellee,

v.Donnald Lee WHYTOCK, Appellant.

No. 20180440-CA

Court of Appeals of Utah.

Filed July 16, 2020

Andrew G. Deiss, John Robinson Jr., Salt Lake City, and Corey D. Riley, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and Nathan Jack, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

Opinion

HARRIS, Judge:

¶1 A jury convicted Donnald Lee Whytock of raping his girlfriend's daughter and tampering with a witness. Whytock appeals both convictions, claiming that the trial court erred in denying his motion for a mistrial, and that his trial counsel rendered constitutionally ineffective assistance. We reject Whytock's arguments and affirm his convictions.

BACKGROUND¹

¶2 In 2014, Whytock lived in an apartment with his girlfriend (Mother) and her three daughters. On one evening in August, Mother's oldest daughter—fourteen-year-old S.B.—went out with a friend, but returned a few minutes past her strict 10:00 p.m. curfew. Upon her return, both Mother and Whytock began "yelling" at her for missing curfew, and S.B. retreated to her bedroom. Mother followed her into the bedroom, and the two of them got into a dispute about S.B.’s activities that evening. Eventually, S.B. began to cry, and Mother then hit S.B. across the face, told her to stop crying, and walked out of the bedroom.

¶3 A little while later, Mother returned to S.B.’s room and told her to get up and go to the store with Whytock. S.B. told Mother she did not want to accompany Whytock on this errand, but Mother "yelled at [S.B.] some more" and told her "that [she] needed to go." In a report to police made a few days later, S.B. stated that she complied with Mother's request, and went to the store with Whytock. At trial, however, S.B. testified that she refused Mother's request, and that Whytock went to the store alone, while she stayed in her bedroom.

¶4 Later that evening, S.B. was in her bed trying to sleep. She testified that, after Whytock returned from the store, he entered her bedroom, got into her bed, and covered her mouth with his hand. He told her to "be quiet" and to take off her shorts and underwear, then he "spread [her] legs apart" and "put his penis inside [her] vagina." When S.B. began to cry, he told her to "stop crying" and that she "deserved it." Afterward, Whytock told S.B. that if she "were to tell anybody, he'd come back and do it to [her] two little sisters."

¶5 A few days later, S.B. was at her father's (Father) house when Mother called her and threatened to take her phone away. S.B. testified that this frightened her, because she knew from past experience that "[w]henever [Mother] took [their] phones that's when she started hitting" S.B. and her sisters because they "couldn't call [their] dad to come get [them]." S.B. then called Mother's parole officer, who suggested she contact the police. Later that day, S.B. went to the police station and signed a written statement describing certain acts of child abuse perpetrated on her by Mother; the statement included a detailed description of some of the events that occurred on the night of the rape, including that Mother "hit [S.B.] across the face" and that Mother made S.B. go to the store with Whytock, whom she described as a "known drug dealer and user." But S.B. did not mention that Whytock had raped her.

¶6 After that, S.B. lived for a few months with Father, and then for a few months with her older sister. While she was living with her older sister, S.B. twice interacted with police on unrelated matters, but she did not inform them about the rape on either occasion. Meanwhile, S.B.’s younger sisters continued to live with Mother and Whytock. S.B. testified that she did not tell anyone about the rape for several months because her "two little sisters were still living with [Mother and Whytock] and [she] was too afraid to tell what happened, because [she] didn't know what was going to happen to them if [she] told."

¶7 In the spring of 2015, after living with her older sister for a few months, S.B. moved in with her stepfather (Stepfather). Soon thereafter, S.B. shared the details of the rape with Stepfather's mother. This was the first time S.B. had told anyone about the rape. A few weeks later, after S.B. was hospitalized for stomach pains, S.B. also told a social worker at the hospital, as well as a number of doctors, about the rape. After that, S.B. reported the rape to police.

¶8 In or about April 2015, after S.B. told others about the rape, Whytock appeared at Stepfather's house and knocked on the door. Stepfather asked Whytock what he wanted, and Whytock responded that "he was the person involved ... with [S.B.]," and that "he wanted [Stepfather] to have [S.B.] recant her statement."

¶9 After investigating the matter, police arrested Whytock, and the State charged him with one count of rape, a first-degree felony, and one count of tampering with a witness, a third-degree felony. The original charging document indicated that the tampering occurred in August 2014, and was presumably referring to the threat S.B. reported that Whytock had made—that if she told anyone about the rape he would harm her sisters. The State later amended the information, however, to widen the date range on the witness tampering charge to "between August 1, 2014 and April 30, 2015." This change was apparently intended to bring Whytock's doorstep conversation with Stepfather into play as another possible instance of witness tampering. But the State did not attempt to amend the information to add a second witness tampering charge.

¶10 After a preliminary hearing and some pretrial motions, the case proceeded to jury trial, where the State presented testimony from S.B., Father, Stepfather, Mother, and an investigating officer, all of whom testified as to the events outlined above. Mother—the State's final witness—had a history of addiction, and both she and Whytock had a criminal record. Prior to trial, the court ruled, in response to a motion made by Whytock, that no evidence of Whytock's criminal history would be introduced in front of the jury, at least not in the State's case-in-chief. Immediately before Mother's testimony, and outside the jury's presence, the prosecutor noted that Mother was a "loose cannon" and requested a recess specifically to "give [Mother] the rules from the judge of not mentioning certain things" about Whytock. Immediately following the recess, Mother took the stand and, in response to certain background questions from the State, described her history of addiction and noted that she was currently wearing an ankle monitor. Just a minute or two later, in response to a question about whether she and Whytock resided together, Mother answered in the affirmative and then volunteered that she and Whytock had "started out at [her] dad's house" and she "got [Whytock] out on ankle monitor to [her] dad's house from the Salt Lake County Jail." Defense counsel immediately asked to approach the bench, and informed the court that he would like to "make a motion," and the court asked counsel to wait until the next break to do so. Counsel later asked the court to declare a mistrial, but the court denied the motion, expressing doubt that the jury had "even understood" the import of the passing comment, and concluding that the situation did not "rise[ ] to the level" that would implicate a mistrial. The court offered to give a "remedial instruction," but defense counsel declined the invitation.

¶11 When it was his turn to present evidence, Whytock called as witnesses his wife, an ex-girlfriend, a defense-team investigator, and three law enforcement officers. The theme of Whytock's defense was that no rape or post-rape threat occurred, and that S.B. was not credible when she testified otherwise. To bolster this defense, Whytock made two main points. First, Whytock thoroughly cross-examined S.B. and the State's other witnesses, pointing out a number of inconsistencies in the accounts S.B. had given at various times, including whether she went to the store with Whytock on the night of the rape and that she did not tell police about the rape in three different encounters with them. Second, Whytock raised a physical limitation defense, presenting evidence from his wife and ex-girlfriend that, because he was not completely functional sexually, he could not have committed the rape in the manner S.B. described. The State called Mother as a rebuttal witness, and she testified that, in her experience, Whytock had suffered from no such dysfunction.

¶12 During closing argument, the State made only brief mention of the witness tampering charge, and referenced only the threat made to S.B. as the facts supporting that charge. In his closing argument, defense counsel stated that he was not sure whether the witness tampering charge was aimed at the threat made to S.B. or the doorstep conversation with Stepfather, but he addressed both possibilities during argument, even though he acknowledged that it "seem[ed] like" the State's argument was that "the tampering was with [S.B.]" rather than with Stepfather. With regard to the threat, counsel argued that "[i]f the rape didn't happen, the tampering didn't happen." And with regard to the doorstep conversation, counsel argued that Whytock was just asking for S.B. to be "truthful" and to take back any testimony, including the rape allegation, that was "false." The State made no mention of the witness tampering charge during its rebuttal argument. No party requested a jury instruction that would have clarified the set of facts—the August threat or the April conversation—at which the tampering charge was aimed.

¶13 After deliberation, the jury convicted Whytock on both counts.

ISSUES AND STANDARDS OF REVIEW

¶14 Whytock now appeals his convictions, and asks us to consider two issues. First, Whytock challenges the trial court's denial of his motion for a mistrial, a...