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State v. Miranda

Court of Appeals of Utah

November 9, 2017

State of Utah, Appellee,
Adolfo Miranda, Appellant.

         Fourth District Court, Provo Department The Honorable Samuel D. McVey No. 141401607.

          Daniel R. Ybarra, Attorney for Appellant.

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee.

          Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen and Kate A. Toomey concurred.

          HARRIS, JUDGE.

         ¶1 Defendant Adolfo Miranda was convicted of six counts of aggravated sexual abuse of a child and three counts of rape of a child for actions he directed toward his step-daughter (Victim) when she was between the ages of nine and twelve. He appeals all nine convictions, contending that the trial court (1) failed to sanction the State for alleged discovery misconduct, and (2) improperly admitted evidence of his character and prior bad acts. For the reasons stated below, we conclude that the State did not commit any discovery misconduct, and therefore the trial court's decision not to issue sanctions was sound. However, we agree that the trial court should not have admitted some of the evidence in question. But, after a complete review of the trial record, we are unpersuaded that there is a reasonable likelihood that the outcome of the trial would have been different had the evidence been excluded. Accordingly, we affirm Defendant's convictions.


         ¶2 Victim's mother (Mother) and Defendant were married in 2010. Thereafter, Defendant moved in with Mother and her children, whereupon he began to invite Victim to watch television and "cuddle" alone with him in his bed. At trial, Victim testified that during this television time she would "cuddle" with Defendant by lying on her side with her back against his chest in the position commonly referred to as "spooning." After they had done this "a couple times, " Defendant surprised her by touching her buttocks with his hand over her clothing. Victim was approximately nine years old at the time, and testified that she "thought it was weird, " but that she was young and eventually decided it was "probably a normal thing."

         ¶3 From there, a pattern to their "cuddling" emerged. Victim testified that Defendant would invite her to watch television, have her lock the door, and then begin "cuddling" with her while touching her in increasingly inappropriate ways. Over the course of many repeated "cuddling" sessions, Defendant progressed from touching her buttocks over her clothes to placing his hand under her pants against her naked buttocks. Defendant eventually began touching around and then inside her vagina. Victim stated that this inappropriate contact happened "pretty much every day, like when he had free time and stuff then we'd go [to cuddle]."

         ¶4 Victim testified that this pattern continued for several years and that, once Defendant had crossed a particular line, he would not de-escalate, but instead always pushed toward increasingly intimate contact. Eventually, Defendant escalated the "cuddling" beyond touching her buttocks and genitals, and on various occasions he would expose his penis and tell Victim to "grab it and stuff and just start moving it back and forth." Victim also testified that on one occasion Defendant "licked [her] vagina" until she stopped him because she felt "uncomfortable, " and then he asked her to "suck on his penis." Victim refused.

         ¶5 Victim further testified that on "five or six" occasions, Defendant had sexual intercourse with her. The first time, Defendant told her to go downstairs "to cuddle" and then led her to the side of the bed. He then "pulled down [her] pants, and he pulled out his penis, and then he put it inside . . . ."

         ¶6 Mother testified that, during the relevant time period, her relationship with Defendant was "rocky." Their initial marriage, in 2010, lasted only two years. Mother and Defendant separated in 2012 and eventually obtained a divorce. In late 2013, however, Defendant and Mother reconciled and remarried, but this second marriage did not last either. In May 2014, after only seven months, Mother and Defendant separated again, this time for good. Thereafter, Mother and Defendant began divorce proceedings, where the main issue was custody of the young son that Mother and Defendant had in common.

         ¶7 Mother testified that, in May 2014, about two weeks after the second separation, she was discussing Defendant with her children and intimated that she would not reconcile with him. In response, Victim disclosed that she did not like Defendant, and informed Mother that "[h]e raped me." Mother contacted the police.

         ¶8 After an investigation, the State charged Defendant with six counts of aggravated sexual abuse of a child and three counts of rape of a child, all first degree felonies. During pretrial proceedings, Defendant made a discovery request pursuant to rule 16 of the Utah Rules of Criminal Procedure, asking the State to disclose "[a]ny 404(b) evidence of other crimes, wrongs[, ] or acts . . . which the state intend[ed] to introduce" at trial. The State responded by giving notice that it intended to introduce two such witnesses at trial and providing a brief summary of their anticipated testimony. Specifically, the State informed Defendant that it intended to introduce the testimony of V.M., Victim's older sister, that Defendant "touched [V.M.] inappropriately, " and the testimony of D.D., a "minor daughter of . . . Defendant's former business partner, " that Defendant "touched her sexually" on a previous occasion. The State subpoenaed both of these witnesses for trial, but decided not to call either of them to testify.

         ¶9 In addition, the State attached to its discovery responses an investigative report from the Orem Department of Public Safety, which summarized assertions gathered from various witnesses. The report included a recitation of an encounter Mother had with investigators, in which she told police that "she and [Defendant had] been separated off and on over the past few years" because of her "concerns [Defendant] was using drugs and [her] belief he was having sexual affairs."

         ¶10 Eventually, the case proceeded to trial. During opening statements, the State indicated that it would rely primarily on testimony from Victim and Mother to prove Defendant's guilt. Defendant's counsel, in his opening statement, stated that he would attempt to undermine the credibility of those two witnesses. Counsel told the jury that it would "hear about divorce, " "infidelity, " and "allegations of sexual abuse, " and that after hearing about those things it would be presented with "conflicting testimony" and would need to determine which witnesses it believed. Defense counsel theorized that Victim fabricated her allegations of abuse because she "couldn't control what men were coming into [her] home to live" or "control whether [her] father comes back into [her] house, " and that she wanted to dissuade Mother from further unstable relationships. Later during the trial, defense counsel argued that Mother had coached Victim to say that Defendant had sexually abused her so Mother could gain an advantage in the pending divorce case.

         ¶11 During direct examination of Victim, the State primarily solicited testimony about Defendant's abuse, as described above. The State also asked Victim if she had ever viewed pornography. Victim responded that she had briefly seen pornography on an open tab on Defendant's computer while Defendant was out of the room, and that she closed the tab "really fast" when she saw "naked people."

         ¶12 During her direct examination, Mother testified primarily about Victim's relationship with Defendant and about changes to Victim's disposition following the abuse. However, Mother also offered some testimony about her two marriages with Defendant. Specifically, Mother testified that her marriages with Defendant had been "rocky, " and that Defendant "was very abusive."

         ¶13 After the conclusion of the State's case, Defendant testified in his own defense. During direct examination, defense counsel turned to the subject of Defendant's relationship with Mother. Defendant stated that there was "a lot of trouble" in the marriage and eventually volunteered that he had "cheat[ed] on [Mother] before, emotionally." He explained that, during the same time period, Mother was with two other people, and he attempted to draw a contrast between his "cheating emotionally" and Mother's alleged physical affairs. Defendant offered his viewpoint that Mother's affairs and hypocrisy were the reasons they separated. Defendant also testified that he believed Mother was coaching Victim to get revenge on him.

         ¶14 On the morning of the last day of trial, after Defendant's direct examination but before cross-examination, the State informed the court and defense counsel for the first time that it intended to present potential rebuttal evidence concerning the reasons for Mother's separation from Defendant. Specifically, the State sought permission to re-call Mother to testify that the reasons for her separation from Defendant were not as Defendant had described them but, rather, that they had split up because Defendant was abusive to her and used cocaine. The State also sought permission to cross-examine Defendant about these topics.[1] Defense counsel objected, first indicating that he had asked during discovery for the State to disclose all of its potential character evidence as defined under rule 404(b) of the Utah Rules of Evidence, and next arguing that any probative value that Mother's rebuttal testimony might have would be substantially outweighed by the danger of unfair prejudice to Defendant. Defense counsel also later objected on the ground that the rebuttal testimony would introduce specific evidence of collateral matters into the trial. The trial court overruled these objections, concluding that Mother's testimony was not rule 404(b) evidence but, rather, was rebuttal evidence to which Defendant had "opened the door" "under Rule 402 and 403 and 401" by "going into" the reasons for the separation "in his testimony."

         ¶15 After the trial court's ruling, the State proceeded with cross-examination of Defendant and asked about his "emotional affair[s], " and Defendant admitted that he had been "talking to someone else" in case his relationship with Mother "didn't work out." The State also asked Defendant whether he had abused Mother and whether he used cocaine. In response, Defendant admitted he had been violent with Mother and ...

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