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State v. Martin

Supreme Court of Utah

September 7, 2017

State of Utah, Appellee,
v.
Joshua Martin, Appellant.

         On Direct Appeal Fourth District, Provo The Honorable Fred D. Howard No. 121403218

          Sean 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.

          OPINION

          HIMONAS, JUSTICE

         INTRODUCTION

         ¶ 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 conviction.

         BACKGROUND

         ¶ 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.[1]

         ¶ 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 touching.

         ¶ 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 waste time."

         ¶ 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 its sentence.

         ¶ 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 others.

         ¶ 17 Mr. Martin now appeals his conviction and sentence. We have jurisdiction under Utah Code section 78A-3-102(3)(i).

         STANDARDS OF REVIEW

         ¶ 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 17.

         ¶ 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).

         ANALYSIS

         ¶ 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.

         I. THE DISTRICT COURT DID NOT ERR IN CONNECTION WITH THE STATE'S EXPERT'S TESTIMONY

         ¶ 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, occurred.

         ¶ 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 victims' testimony.

         A. 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 them.").

         ¶ 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.

         B. The District Court Did Not Abuse Its Discretion in ...


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