State v. Wright

• Decision Date: 20 June 2013
• Docket Number: No. 20090643–CA.,20090643–CA.
• Citation: 304 P.3d 887,737 Utah Adv. Rep. 49
• Parties: STATE of Utah, Plaintiff and Appellee, v. Justin George WRIGHT, Defendant and Appellant.
• Court: Utah Court of Appeals

304 P.3d 887

737 Utah Adv. Rep. 49

STATE of Utah, Plaintiff and Appellee,

v.Justin George WRIGHT, Defendant and Appellant.

No. 20090643–CA.

Court of Appeals of Utah.

June 20, 2013.

Lori J. Seppi, Attorney for Appellant.

John E. Swallow and Jeanne B. Inouye, Attorneys for Appellee.

Judge STEPHEN L. ROTH authored this Opinion, in which Judges GREGORY K. ORME and WILLIAM A. THORNE JR. concurred.

Opinion

ROTH, Judge:

¶ 1 Justin George Wright challenges his conviction for aggravated sexual abuse of a child on three grounds. First, Wright contends that his trial counsel provided ineffective assistance in investigating and presenting his defense. Wright next argues that the district court erred when it permitted the jury to hear inadmissible expert testimony. Finally, he asserts prosecutorial misconduct during closing statements. We affirm.

BACKGROUND

¶ 2 Wright was charged by information with two counts of aggravated sexual abuse of a child after his daughter (Daughter) reported that Wright “put his hands down her pants and touched her buttocks and vaginal area” while they were lying on a couch. She also reported that Wright sometimes “put his hand down her shirt and touched her breast area.” According to Daughter, this conduct began when she was six or seven years old and continued until August or September 2007, when she was nine years old, at which time Wright moved to Las Vegas to attend school. Daughter did not report the abuse until July 2008, approximately ten months after it had ended. She first told her eleven-year-old cousin but made her cousin promise not to tell because she did not want them to get in trouble if they were not believed and because she was afraid that Wright might go to jail and then kidnap her once he was released. In August 2008, Daughter disclosed the abuse to her mother (Mother) and Mother's fiancé.

¶ 3 Wright was tried by jury on May 5–6, 2009. At the trial, Daughter testified that when she visited Wright at his apartment, they would watch television while lying on the couch. Wright would lie behind Daughter and move the telephone behind him. Wright would then put his hands down her pants, under her underwear, touching her vagina and her buttocks, and, on occasion, under her shirt, placing his hand over her heart. Daughter reported that Wright touched her in this way “[m]aybe more than 10” times with the last incident occurring “a few weeks before he moved.” Daughter further testified that she did not tell Mother right away because Daughter “was afraid she wouldn't believe [her].” Nevertheless, Daughter explained that she was able to disclose the abuse to her cousin because she “felt like [she] could trust her” but that she still feared what might happen if the cousin revealed the abuse, including that Wright might kidnap her. Daughter testified that her fear of being kidnapped stemmed from a television episode of America's Most Wanted that she had viewed sometime in 2007 or early 2008, in which the “dad ... was touching his daughter ... inappropriately” and “went to jail [, then] he got out and he kidnaped her.” In response to defense counsel's questions about her visits with Wright after he moved to Las Vegas, Daughter testified that he did not touch her sexually during those visits and that she had “a pretty good time visiting him.” Daughter also confirmed that her relationship with her father was “physically affectionate” and that Wright never threatened her or told her not to report the touching to anyone.

¶ 4 Mother and her fiancé each testified about the circumstances that led to the disclosure and what Daughter had told them. According to them, Mother, her fiancé, and Daughter were out to dinner when Daughter told them that Wright had threatened to sue Mother for custody. Daughter seemed “nervous” about the situation, but Mother told Daughter not to worry about it because “[i]t's an adult situation” that Wright “shouldn't be bringing ... up with [Daughter] in the first place.” Mother told Daughter that she would “talk to [Wright] about it” and “just kind of let it go.” The next morning, however, Mother “felt bad” because she typically “tr[ied] to keep the communication open” by “mak[ing Daughter] talk to [her] about what she was feeling” when she was upset. Fearing that she may have been too dismissive with Daughter and noticing that Daughter was “still a little quiet,” Mother assured Daughter that she could “tell me things,” even if someone had made a threat, and analogized the situation to when they had discussed the difference between good and bad touching and why Daughter should tell Mother if someone touched her inappropriately. Daughter then disclosed the abuse. Mother called the Division of Child and Family Services, which referred her to Detective Peggy Faulkner, an investigator assigned to the Family Crimes Unit of the Salt Lake County Sheriff's Office Investigations Division.

¶ 5 Detective Faulkner interviewed Daughter as part of the investigation that ensued from the sexual abuse Daughter reported. Detective Faulkner also testified at trial. In the course of its direct examination, the State asked Detective Faulkner, “Is it uncommon for you to have cases involving a disclosure that comes years after an initial event of touching?” Detective Faulkner responded, “No. No.” Wright's counsel did not object to this question. But when the State followed up by asking how many cases Detective Faulkner had handled where the disclosure occurred a significant period of time after the abuse, Wright's counsel did object, arguing that Detective Faulkner was never designated as an expert witness and that the question seemed to require expert testimony. He also objected on grounds of “relevance.” The court overruled Wright's objections. Detective Faulkner then answered, “I would be willing to say that at least a third of my cases ... are victims where they have either become 18 and are [o]lder or they've endured the abuse living with the suspect without telling anyone for years.”

¶ 6 The defense called Wright's mother, his sister, and Wright himself. Wright's mother testified that Wright and Daughter were “very affectionate,” “[a]lways” “snuggling on the couch, watching TV” with Wright lying behind Daughter. Wright also testified about the “affectionate” nature of his relationship with Daughter. Wright explained that his family was physically “[v]ery loving[, v]ery affectionate” and that he raised Daughter the same way. In particular, Wright described how he would “lay [on] his [grandfather's] lap and have him scratch [his] back[ ].” Wright drew a comparison between that activity and his lying on the couch with Daughter and tickling her stomach and back. Wright also testified about how he had planned to “gain partial custody” of Daughter once he moved back to Utah. According to Wright, he told Mother about his plan shortly before he moved and “it caused a big fight.” He also explained that while he was living in Las Vegas, his phone contact with Daughter became less frequent.

¶ 7 Wright's mother described her own relationship with Daughter as “very close” and explained that they would regularly engage in “girl talk,” during which Wright's mother had talked to Daughter about inappropriate touching and Daughter told her “private things.” Daughter never disclosed that Wright was inappropriately touching her during these talks. Wright's sister testified that Daughter was “like [her] little sister” and they too were “really close.” Wright's sister explained that Daughter was comfortable talking to her and sometimes talked to her about boys she liked, but Daughter had never reported or even hinted that Wright was sexually abusing her.

¶ 8 In his closing statement, defense counsel suggested that Daughter's testimony could be the product of her imagination based on events that occurred on age-inappropriate television programs that Daughter watched, such as America's Most Wanted. According to counsel, the abuse was not real, but Daughter had recast an event she had seen on television as something that had happened to her by transforming, over time, Wright's innocent and affectionate touching into something inappropriate. Defense counsel attributed this to Daughter's recent decision to call Mother's fiancé, “Dad,” and her resulting guilt from “turning her back on [Wright] for another father. But if over time she has convinced herself that he's a pedophile, that he's abused her from an emotional perspective[,] it makes it easier and it makes it okay.” Counsel also argued that “[i]t worked” because Daughter “has gotten exactly what she wants. She is with the family she wants to be with[ and s]he doesn't have to see [Wright].” The prosecutor responded,

[T]here is absolutely no reason not to believe [Daughter], who, as I told you before gave you every single piece of evidence that you need for the elements of this crime. [Daughter] doesn't want to hurt her father. She loved him even after he did horrible things to her. She just wants him to stop hurting her. You have the power to make that stop.

¶ 9 The jury convicted Wright on one count of aggravated sexual abuse of a child and acquitted him on the other count.¹ Wright appealed, and on his motion, this court remanded the case to the district court to conduct a hearing pursuant to rule 23B of the Utah Rules of Appellate Procedure on the claims that trial counsel had been ineffective because he had not reasonably investigated or pursued a fabrication defense and he did not effectively use available witnesses and evidence at trial. SeeUtah R. App. P. 23B(a) (“A party to an appeal in a criminal case may move the [appellate] court to remand the case to the trial court for entry of findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel.”). The district court on rule 23B remand concluded that Wright's trial counsel had not been ineffective. The court supported its decision...