Direct Appeal Fourth District, Provo The Honorable Fred D.
Howard No. 121403218
D. Reyes, Att'y Gen., Christopher D. Ballard, Asst.
Solic. Gen., Salt Lake City, for appellee
Margaret P. Lindsay, Dustin M. Parmley, Douglas J. Thompson,
Provo, for appellant
Justice Himonas authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Durham, and Justice Pearce joined.
1 After a jury trial, Joshua Martin was convicted of four
counts of aggravated sexual abuse of a child and sentenced to
a composite term of thirty years to life in prison (fifteen
years to life on each count, with one count running
consecutive to the other three).
2 On appeal, Mr. Martin argues that the district court
committed three sets of errors. First, he argues that the
district court made a variety of errors in admitting expert
testimony by a forensic interviewer at the Children's
Justice Center. To the extent these arguments are preserved,
we conclude that they lack merit.
3 Second, Mr. Martin argues that the district court abused
its discretion, and violated his constitutional right to
present a complete defense, when it excluded evidence of a
witness's supposed prior false accusations of sexual
misconduct. Although the district court's order excluding
this evidence recited a factor from State v.
Shickles, 760 P.2d 291 (Utah 1988), which we have since
repudiated, it is apparent from the record that the district
court did not rely on this disapproved factor, and we
otherwise find no abuse of discretion.
4 Third, Mr. Martin challenges his sentence, arguing that the
district court failed to properly apply LeBeau v.
State, 2014 UT 39, 337 P.3d 254, in its
interests-of-justice analysis, and that it abused its
discretion in weighing the aggravating and mitigating factors
in his case. To the extent that Mr. Martin identifies a
potential legal error in the court's interests-of-justice
analysis, this issue is waived because Mr. Martin did not
object before the district court, and he does not argue on
appeal that the district court committed plain error. We
otherwise find no abuse of discretion in the district
court's sentencing decision.
5 We therefore affirm Mr. Martin's sentence and
6 The State tried Mr. Martin on four counts of aggravated
sexual abuse of a child, a first-degree felony, for sexually
abusing his sisters-in-law A.L. and N.L. while occupying
"a position of special trust in relation to" them.
Utah Code § 76-5-404.1(4)(h).
7 At trial, A.L. testified that Mr. Martin had touched her
vagina on four different occasions while he was supervising
her; N.L. testified that he touched her vagina twice-once
under her underwear and once over it-while she was driving
with him during a family road trip to New Mexico. The State
also elicited testimony from Mr. Martin's First Sergeant
in the Air Force, who testified that, after learning of
N.L.'s and A.L.'s allegations, Mr. Martin approached
him and stated that "he had been thinking about seeking
mental health assistance for a while . . . because he had
thoughts about" one of the victims.
8 Mr. Martin's defense strategy at trial was to undermine
the credibility of A.L. and N.L. in two ways: (1) by
highlighting inconsistencies in their disclosures and
testimony about his sexual abuse and (2) by developing
evidence that the children had been coached into falsely
accusing him of sexual misconduct by their adoptive mother
(Mr. Martin's mother-in-law), Stephanie.
9 In connection with the first prong of his defense strategy,
Mr. Martin highlighted several inconsistencies in the
victims' disclosures and testimony. For example, Mr.
Martin noted that A.L. gave inconsistent testimony about the
order in which the incidents of sexual abuse occurred. He
also noted that the victims gave inconsistent descriptions of
the circumstances of their abuse. Among other things, he
pointed out that A.L. testified that she remembered a detail
of one incident of sexual abuse-that she and Mr. Martin were
watching a Western movie when Mr. Martin touched her-when she
previously stated that she did not know what movie they were
watching. Similarly, he highlighted that N.L. had initially
disclosed that Mr. Martin had inappropriately touched her
only once when they were on a road trip to New Mexico, but
that she later disclosed more than one inappropriate
10 In order to explain the inconsistencies in the
victims' disclosures, the prosecution designated as
experts two forensic interviewers from the Children's
Justice Center: Chelsea Smith and Tracy Seegmiller. Over
defense counsel's objection, the district court ruled
that Ms. Smith was qualified as an expert on why child
victims of sexual abuse often make incomplete initial
disclosures and disclose additional details and facts
pertaining to their sexual abuse over time. The court also
allowed Ms. Smith to "testify regarding common
behaviors, in addition to the arena of disclosures, of
children who have been abused." The court ruled that Ms.
Smith was qualified "by virtue of her experience of
conducting more than 1, 800 interviews, and also through her
experience as a therapist, through her on-the-job training
and continuing education, and through her education during
her master's and bachelor's degrees." Because
the court concluded that Ms. Seegmiller's testimony would
be cumulative of Ms. Smith's, however, it excluded her.
11 In addition to identifying inconsistencies in A.L.'s
and N.L.'s testimony, Mr. Martin sought to develop
evidence that A.L. and N.L. had been manipulated into falsely
accusing him of sexual misconduct by their mother, Stephanie.
In particular, Mr. Martin introduced opinion and reputation
testimony regarding Stephanie's character for
truthfulness, and he sought to introduce evidence that
Stephanie had induced some of her other children to make
false accusations of sexual misconduct in the past and
evidence that Stephanie had, herself, falsely accused others
of sexual misconduct. The State, for its part, sought to
exclude this evidence under rules 404(b) and 403 of the Utah
Rules of Evidence.
12 In a written evidentiary ruling filed on February 13,
2015, the district court permitted testimony that Stephanie
had previously manipulated other of her children into levying
false accusations of sexual misconduct, but it excluded the
evidence that Stephanie had falsely accused others of sexual
misconduct. It ruled that these alleged false
accusations-which included a false claim that she and an
in-law had had an affair and that another family member had
made an unwanted sexual advance on her- were offered only to
attack Stephanie's character. It also ruled that they
were "in no way connected to this case" and would
"only serve to confuse the issues, mislead the jury, and
13 Early on in its ruling, the court recited the factors from
State v. Shickles for deciding whether evidence
should be excluded under rule 403 of the Utah Rules of
Evidence, including "the degree to which the evidence
probably will rouse the jury to overmastering
hostility." 760 P.2d 291, 295-96 (Utah 1988). But it did
not rely on this factor in excluding evidence of
Stephanie's prior false accusations.
14 After hearing the evidence, the jury convicted Mr. Martin.
At the sentencing hearing, the prosecutor asked the court to
sentence Mr. Martin to fifteen years to life on each of the
four counts of conviction, with one count to run consecutive
to the others, for a composite sentence of thirty years to
life. The prosecutor argued that this sentence was
proportionate to the presumptive sentence for two similar
offenses: sodomy of a child and rape of a child. The
prosecutor also argued that Mr. Martin deserved this sentence
because he had perpetrated multiple acts of abuse on more
than one victim. The prosecutor emphasized that, instead of
taking responsibility for his criminal conduct, Mr. Martin
had used his sentencing hearing as an additional opportunity
to attack the honesty of the victims' family. And the
prosecutor pointed out that Mr. Martin had been able to
maintain the confidence of many members of his community-some
of whom stated, even after he was convicted, that they would
trust him with their children-which underscored the risk he
posed to community safety.
15 After the State rested, Mr. Martin was given the
opportunity to respond. Mr. Martin asked for a sentence of
six years to life. Because he had been convicted of
aggravated sexual abuse of a child based on the position of
special trust that he occupied, Mr. Martin urged the court
not to "double count" that factor in settling on
16 The sentencing court agreed not to put undue weight on Mr.
Martin's having occupied a position of special trust, and
it noted Mr. Martin's good work history and lack of a
criminal record. It also acknowledged that Mr. Martin's
conduct had not inflicted physical injury on his victims. But
it ultimately concluded that the fact that Mr. Martin had
perpetrated multiple acts on two different child victims,
that he refused to take responsibility, and that he had
continued to attack the credibility of his victims'
family even after he was convicted warranted a more severe
sentence. Stating that it largely embraced the
prosecutor's reasoning, the court imposed the sentence
that the prosecutor requested: fifteen years to life on all
four counts, with one count running consecutive to the
17 Mr. Martin now appeals his conviction and sentence. We
have jurisdiction under Utah Code section 78A-3-102(3)(i).
18 Generally, district courts are afforded "a great deal
of discretion in determining whether to admit or exclude
evidence." State v. Cuttler, 2015 UT 95, ¶
12, 367 P.3d 981 (citation omitted). Thus, as long as the
district court did not make an error of law, this court will
reverse a district court's decision to admit or exclude
evidence under rules 608, 404(b) and 403 of the Utah Rules of
Evidence only if that decision "is beyond the limits of
reasonability." Id. (citation omitted); see
also State v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d
19 The same standard of review applies to district
courts' decisions to admit or exclude expert testimony
under rule 702. As long as the court has not applied the
wrong rule or misinterpreted the law, "[t]he trial court
has wide discretion in determining the admissibility of
expert testimony, and such decisions are reviewed under an
abuse of discretion standard." State v. Hollen,
2002 UT 35, ¶ 66, 44 P.3d 794 (citation omitted). We
therefore "will not reverse [a decision to admit or
exclude expert testimony] unless the decision exceeds the
limits of reasonability." Id. (alteration in
original) (citation omitted).
20 Finally, unless the court "fails to consider all
legally relevant factors, " imposes an illegal sentence,
or bases its sentencing determination on an erroneous
interpretation of law, LeBeau v. State, 2014 UT 39,
¶ 16, 337 P.3d 254, this court will overturn a
sentencing decision only if it is "clear that the
actions of the [sentencing] judge were so inherently
unfair as to constitute an abuse of discretion, "
Killpack, 2008 UT 49, ¶ 18 (citation omitted).
21 We first address Mr. Martin's arguments that the
district court erred in connection with the expert testimony
of Chelsea Smith. We conclude that, to the extent Mr.
Martin's arguments are preserved, they lack merit. We
then consider Mr. Martin's argument that the district
court abused its discretion-and violated his constitutional
right to present a complete defense-in excluding purported
evidence that the victims' mother had previously accused
other people of sexual misconduct, and we conclude that the
district court did not err. Finally, we explain why we uphold
Mr. Martin's sentence.
DISTRICT COURT DID NOT ERR IN CONNECTION WITH THE STATE'S
22 As we have explained, the district court allowed the State
to call a forensic interviewer from the Children's
Justice Center who was qualified as an expert in two areas:
(1) the reasons children make multiple and incomplete
disclosures about abuse and (2) the "common behaviors .
. . of children who have been abused." At trial, the
expert described child interview protocols, testified about
the reasons children make incomplete or inconsistent
disclosures about sexual abuse, and explained that children
respond to sexual abuse by demonstrating a wide and largely
unpredictable array of behaviors. While she did identify some
common behavioral changes that occur in child victims of
sexual abuse-such as depression, anxiety, changes in sleep,
and changes in school performance-she stated that these
changes are not to be expected in every case and ultimately
are not reliable indicators of whether abuse has, or has not,
23 In the course of explaining why children do not always
fully disclose sexual abuse, the expert made comments about
children's memory. She testified that children sometimes
have difficulty with memory retrieval. She also testified
that "[t]he more that we talk about things . . . we will
often remember more or additional details"-a process
that the expert called "reminiscence."
24 On appeal, Mr. Martin argues that the district court
committed three errors in connection with this testimony.
First, keying into the expert's testimony about memory
retrieval and "reminiscence, " he argues that the
district court erred in allowing the expert "to testify
extensively about child memory and recall." Second, he
argues that the district court should not have allowed the
expert to testify "regarding reasons why children will
give differing disclosures of alleged abuse"-or about
the wide variety of behaviors that abused children
exhibit-because this testimony was "unhelpful,
misleading and unfairly prejudicial." Finally, he argues
that the expert's testimony improperly bolstered the
Mr. Martin Did Not Preserve His Argument that the Expert
Exceeded the Scope of Her Expertise in Testifying About
Memory Formation and Recall
25 Mr. Martin's first argument is unpreserved.
"Generally speaking, a timely and specific objection
must be made in order to preserve an issue for appeal."
State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d
551. To be specific, the objection must present the issue to
the court "in such a way that the trial court has an
opportunity to rule on that issue." In re Adoption
of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702
(citation omitted). This court will not consider an issue to
which no timely and specific objection has been made
"unless the trial court committed plain error or
exceptional circumstances exist." State v.
Nelson-Waggoner, 2004 UT 29, ¶ 16, 94 P.3d 186. And
we will not find plain error or exceptional circumstances
unless the appellant argues in his opening brief on appeal
that one of those exceptions to the preservation requirement
applies. See Coleman ex rel. Schefski v. Stevens,
2000 UT 98, ¶ 9, 17 P.3d 1122 ("[B]ecause Mr.
Coleman did not properly raise these three issues in the
trial court and thereby preserve them for appellate review,
and because he argued plain error or manifest injustice for
the first time in his reply brief, we decline to review
26 Mr. Martin did not object to any of the testimony about
which he complains on appeal. While Mr. Martin did move,
prior to trial, to exclude the State's expert altogether,
this motion was not sufficient to give the district court the
opportunity to rule on whether the expert should have been
permitted to testify about childhood memory and recall.
Cf. State v. Eldredge, 773 P.2d 29, 34-35 (Utah
1989) (objection to witness's testimony based on
competency insufficient to preserve appeal of witness's
reliability). The district court did not authorize this
expert to testify about childhood memory and recall. Instead,
it authorized the expert to testify "regarding multiple
disclosures and potential reasons for multiple
disclosures" based on "her experience of conducting
more than 1800 interviews . . ., her experience as a
therapist . . ., her on-the-job training and continuing
education, and . . . her education during her master's
and bachelor's degrees." While this order arguably
dispensed with the need for any future objection to the
expert's qualifications to give testimony based on
her training and experience as to why children make
multiple and incomplete disclosures of sexual abuse, it did
not obviate the need for counsel to object to testimony that
exceeded the scope of what the court determined to be the
expert's expertise. See State v. Shepherd, 2015
UT App 208, ¶ 30 n.6, 357 P.3d 598 (distinguishing
between objections that the expert exceeded the scope of his
or her expertise, or offered an impermissible lay opinion,
and challenges to the expert's qualifications).
Accordingly, Mr. Martin needed to object to testimony about
childhood memory and recall in order to preserve this issue
for appeal. Because he did not, and because he failed to
argue on appeal that plain error or exceptional circumstances
justify our review, the issue is waived. See
Nelson-Waggoner, 2004 UT 29, ¶ 16;
Coleman, 2000 UT 98, ¶ 9.
27 In any event, we note that what Mr. Martin characterizes
as the expert's "extensive" testimony about
child "memory formation and recall" amounted to
brief remarks that (1) children sometimes forget information
and then remember it later, (2) the more children talk about
events the more they remember about them, and (3)
children's memories are malleable and suggestible. None
of these statements called for expertise in the mechanisms of
memory retrieval and recall. Instead, these statements simply
described trends and tendencies that were readily observable
by a forensic interviewer with the expert's level of
training and experience. When her testimony is viewed in
context, we do not believe that the expert sought to testify
to psychological or neuroscientific matters beyond the scope
of her expertise.
The District Court Did Not Abuse Its Discretion in ...