District Court, Vernal Department The Honorable Edwin T.
Peterson No. 121800664
Colleen K. Coebergh, Attorney for Appellant
D. Reyes, Laura B. Dupaix, and Jeffrey S. Gray, Attorneys for
Kate A. Toomey authored this Memorandum Decision, in which
Judges Stephen L. Roth and David N. Mortensen concurred.
Donald S. Neilson was convicted of three counts of aggravated
sexual abuse of a child, and one count of sodomy on a child,
see Utah Code Ann. §§ 76-5-404.1(4),
-403.1 (LexisNexis Supp. 2016), all first degree felonies.
Neilson contends the district court erred in denying his
motion for a mistrial and in failing to sua sponte direct a
verdict on all counts. Neilson also argues the district court
abused its discretion in ordering his prison sentences to run
consecutively. We affirm.
Sometime in late 2009 or early 2010, Neilson became friends
with R.S. (Father) and five-year-old C.S. (Child). Father was
intermittently out of work and sometimes stayed with
Child's mother (Mother) and sometimes with Neilson.
Father and Child occasionally stayed with Neilson for several
days at a time. In the summer of 2012, when Child was eight
years old, she disclosed to her grandmother that Neilson had
touched her inappropriately. Child eventually told Father,
and Father called the authorities. A police officer (Officer)
In the interview, Child stated that Neilson touched her
inappropriately on three different occasions. The first
instance occurred when she and Father were staying at
Neilson's house overnight. Father was sleeping in the
living room, and Child went into Neilson's room to avoid
Father's snoring. Child went to sleep but awakened to
find her pants and underwear pulled down to her knees and
"something touching [her] private." She saw that it
was Neilson. Child tried "to get him away, " but he
would not leave her alone. Neilson asked her if she wanted
him to stop and Child said, "yes, " but Neilson
"started to do it a little bit more." When asked
what Neilson was doing, Child responded, "He was
touching outside of my private and inside."
On another occasion, Child was with Neilson at his house and
Neilson took her into the living room and had her sit on his
lap. He unbuttoned her pants, took down her underwear, and
touched her "privates."
Child said that about a week later she was on Neilson's
bed and he touched her with his hand and that "the worst
part" was when "[h]e licked [her] privates."
Child was lying on the bed, Neilson was standing, and he
licked the "inside" of her "privates."
Child also said Neilson used a video camera on this occasion.
After interviewing Child, Officer obtained search warrants
for Neilson's house, storage unit, and vehicle. A camera
was found in Neilson's vehicle but no corroborating
photographs or video footage was discovered. Officer
contacted Neilson, but Neilson declined to speak with him.
Neilson was charged with three counts of aggravated sexual
abuse of a child, and one count of sodomy on a
child. A jury trial was held in
September, 2013. Officer, Child, Mother, Father, and the
investigator all testified at trial and a video recording of
Officer's interview with Child was played for the jury.
During direct examination, the prosecutor (Prosecutor) asked
Officer if he contacted Neilson during his investigation.
Officer stated that he had contacted Neilson, but that
Neilson declined to speak with him. After Officer testified,
and out of the presence of the jury, Neilson moved "for
a mistrial based on prosecutorial misconduct." Neilson
argued that Prosecutor inappropriately focused the jury's
attention on Neilson's refusal to talk with Officer and
that the jury would therefore draw "a negative
inference." The court denied the motion but gave the
jury a curative instruction that it should "take no
negative implication" from the fact that Neilson did not
speak with Officer and to give his refusal "no weight
whatsoever in [its] deliberations."
At trial, Father testified that he and Neilson were good
friends for about three years. They celebrated birthdays and
holidays together and "felt like family." When
Father stayed at Neilson's house, Child stayed with him,
and the two slept in the living room. Father testified that
he sometimes left Child alone with Neilson at Neilson's
house. Father said that Neilson was "very
affectionate" and that Father once got upset with
Neilson for giving Child a "[q]uick kiss on the
Neilson also testified at trial. He confirmed that he and
Father were friends for three years, that Father and Child
often stayed at his house for "three or four nights in a
row or a week, " and that Neilson sometimes assisted
Father financially. Neilson denied ever having been alone
with Child at ...