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State v. Neilson

Court of Appeals of Utah

January 12, 2017

State of Utah, Appellee,
v.
Donald S. Neilson, Appellant.

         Eighth District Court, Vernal Department The Honorable Edwin T. Peterson No. 121800664

          Colleen K. Coebergh, Attorney for Appellant

          Sean D. Reyes, Laura B. Dupaix, and Jeffrey S. Gray, Attorneys for Appellee

          Judge Kate A. Toomey authored this Memorandum Decision, in which Judges Stephen L. Roth and David N. Mortensen concurred.

          MEMORANDUM DECISION

          TOOMEY, Judge.

         ¶1 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.

         BACKGROUND[1]

         ¶2 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) interviewed Child.

         ¶3 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."

         ¶4 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."

         ¶5 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.

         ¶6 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.

         ¶7 Neilson was charged with three counts of aggravated sexual abuse of a child, and one count of sodomy on a child.[2] 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.

         ¶8 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."

         ¶9 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 lips."

         ¶10 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 ...


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