Utah Court of Appeals affirms burglary conviction; affirms child sex abuse convictions; and affirms object rape conviction.

State v Johnson

Johnson appealed his Burglary conviction. The panel affirmed. It held there was no error in the jury instructions because, read as a whole, they correctly required the jury to find that Johnson had the purpose of depriving victim of her cell phone which he took with him form the house in order to convict him of burglary, accurately stated the law on wrongful appropriation and accurately answered the jury’s questions about the instructions though doing so without consulting counsel was not best practice. It held that there was no error under Rule of Evidence 403 in admitting part of a voice message as the message contained relevant statements about Johnson’s state of mind and the expletives on the recording were not so prejudicial so as to overcome the probative value as they have limited shock value in today’s society. It held there was no ineffective assistance of counsel in not objecting to the trial judge informing the jury why a break was taking longer than expected and stating the state had not decided to present rebuttal and that the court and counsel were determining what exhibits would go with the jury for deliberations as the interaction was about a procedural matter and was done to shield defense counsel from possible blame for the delay. It held there was no ineffective assistance of counsel in not objecting to a bailiff possibly being in the jury room while a recording was played as the bailiff may not have been in the room, was not in the room during deliberations, was not an adversary in the proceeding and may have protected Johnson by preventing the jury from hearing portions of the recording not admitted into evidence. It held that there was no error under Rule of Evidence 106 when victim’s statement to police was admitted as defense counsel had used the statement to impeach the witness and created a misleading impression about victim’s testimony and credibility. The panel finally held there was no cumulative error as there were no errors demonstrated by Johnson on appeal.

State v Burnside

Burnside appealed his convictions for felony child sex abuse and the denial of his motion to arrest judgment. The panel affirmed. It held there was no plain error in the trial court’s response to the State’s objection to an answer from victim’s biological father about victim’s medical condition as the court merely instructed father to avoid narrative answers which did not limit counsel’s ability to present evidence about victim’s condition and there was evidence of the rash in question from other witnesses thus the evidence Burnside wanted to present was in fact presented. It found no plain error in the trial court not allowing examination of child’s mother about stepfather’s drug abuse as Burnside provided no factual basis for the accusations and was allowed to present evidence of fighting in the family, alcohol use by stepfather and victim’s rash and broken leg all of which was used to argue Burnside’s theory something besides sex abuse caused victim’s post-traumatic stress disorder. It found no ineffective assistance of counsel in not investigating victim’s former doctor as Burnside failed to identify the doctor or provide any nonspeculative statement of anticipated testimony and in any event there was evidence the record about victim’s rash and her reactions to it. It found no ineffective assistance of counsel in the failure to make a timely motion for funding for an expert witness as Burnside failed to identify an expert and to set out the anticipate testimony and thus there could be no finding of prejudice. It rejected his other contentions holding that not objecting to the examining nurse practitioner’s testimony about the exam was trial strategy and the trial court’s finding the testimony was admissible as statements done for medical treatment was unchallenged; that any error in paying victim’s forensic interview was invited by trial counsel’s stipulation and any error would not be obvious given trial counsel’s argument the interview demonstrated inconsistent statements by victim; and that while the trial court erred in not recording ion chambers voir dire and a sidebar conference, there was no showing of prejudice as Burnside failed to prove any by providing an adequate record for review by creating one at the hearing on his motion to arrest judgment.

State v Christensen

Christensen appealed his conviction for object rape. The panel affirmed. It held victim was competent to testify even though she was under the influence of Ambien as she was present during the assault, perceived pain in her rectum and remembered speaking with Christensen and thus there was no error in allowing her to testify and no ineffective assistance in not objecting particularly as counsel used her drug use and black out to impeach her on cross examination. It held the state’s expert witness was properly allowed to testify about victim’s symptoms and their consistency with post-traumatic stress disorder as oath precedent permits this; it was relevant to the issue of whether the incident was consensual or rape; and there was no prejudice given the physical injuries to victim and victims own testimony about the assault and thus neither plain error or ineffective assistance occurred in allowing the testimony or failing to object. It finally held Christensen inadequately briefed his argument about his own expert witness as the whole argument was one paragraph and did not develop meaningful legal analysis or provide record citations.