District Court, Salt Lake Department The Honorable Vernice S.
Trease The Honorable Deno G. Himonas No. 101908693
Nathalie S. Skibine, Attorney for Appellant
D. Reyes and William M. Hains, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judges
Gregory K. Orme and Michele M. Christiansen concurred.
Mark Jess Roberts appeals his convictions for various crimes
involving sexual abuse of a child (Victim). He argues that
the trial court erred by (1) admitting into evidence a
video-taped interview of Victim by the Children's Justice
Center (the CJC interview), (2) failing to strike testimony
of a witness, and (3) excluding evidence regarding another
potential perpetrator of Victim's sexual abuse. We
Between the ages of four and five, Victim lived with her
mother and Roberts, her mother's boyfriend. Though she
knew that Roberts was not her biological father, she referred
to him as "dad."
Victim was taken to live with her grandmother (Grandmother)
when she was five years old and eventually disclosed to
Grandmother, her cousin, and a therapist that Roberts had
sexually abused her. In May 2010, Grandmother took Victim to
the Children's Justice Center where a caseworker
interviewed Victim about the abuse. The CJC interview was
videotaped, and during the interview, Victim disclosed
details of several separate incidents of abuse.
The State charged Roberts with three counts of first degree
felony rape of a child, two counts of first degree felony
sodomy on a child, one count of first degree felony
aggravated sexual abuse of a child, and one count of class A
misdemeanor lewdness involving a child.
Before and during trial, the court made several evidentiary
rulings relevant to this appeal. First, before trial, the
State moved to admit the video of the CJC interview. Roberts
objected under rule 15.5 of the Utah Rules of Criminal
Procedure, arguing that the interview was not sufficiently
reliable. The court held a hearing on the matter, and both
parties presented expert testimony addressing the reliability
of the interview. The court ultimately found the CJC
interview to be sufficiently reliable and allowed the State
to play the video for the jury.
At trial, Victim's therapist, a social worker (Social
Worker), testified. She provided specific details about
Victim and their therapy sessions, and she also compared
Victim's behavior to other child victims of sexual abuse.
Approximately thirty minutes into the State's direct
examination Roberts objected, arguing that the State had not
notified him that Social Worker would testify as an expert
and moving to strike Social Worker's testimony in its
entirety. The trial court ruled that Roberts's motion was
untimely and that he had therefore waived his objection.
Finally, Roberts attempted to elicit testimony from
Grandmother that her ex-husband, Victim's grandfather
(Grandfather), was a registered sex offender and had
previously been convicted of child sexual abuse. The State
objected, arguing under rule 403 of the Utah Rules of
Evidence that evidence of Grandfather's previous
convictions was substantially more prejudicial than
probative. The court sustained the objection, concluding that
the danger of unfair prejudice substantially outweighed the
probative value of the evidence.
The jury convicted Roberts on all counts. Roberts appeals.
Roberts raises three main issues on appeal. First, he argues
that the trial court erred in admitting the CJC interview.
Second, he argues that the court abused its discretion when
it did not strike Social Worker's testimony. Finally, he
argues that the court abused its discretion by not admitting
evidence of Grandfather's prior convictions.
CJC Interview's Admissibility
Roberts argues that the trial court erred in admitting the
CJC interview into evidence. He contends that Victim's
recorded statement was not sufficiently reliable as required
by rule 15.5 of the Utah Rules of Criminal Procedure.
¶11 Rule 15.5 provides that "the oral statement of
a victim . . . younger than 14 years of age which was
recorded prior to the filing of an information or indictment
is . . . admissible as evidence in any court proceeding
regarding the offense if/' among other things, "the
court views the recording before it is shown to the jury and
determines that it is sufficiently reliable and trustworthy
and that the interest of justice will best be served by
admission of the statement into evidence." Utah R. Crim.
Reliability in this context is a fact-intensive inquiry,
requiring the trial court to undertake "an in-depth
evaluation of the proposed testimony" and then enter
findings and conclusions to explain its decision to admit or
exclude the testimony. See State v. Snyder, 932 P.2d
120, 133 (Utah Ct. App. 1997) (citation and internal
quotation marks omitted). As a result, "[i]n reviewing
the trial court's decision to admit, we defer to the
trial court's fact-finding role by viewing the facts in
the light most favorable to the trial court's decision to
admit and by reversing its factual findings only if they are
against the clear weight of the evidence." See State
v. Ramirez, 817 P.2d 774, 782 (Utah 1991); see
also Utah R. Civ. P. 52(a)(4) ("Findings of fact,
whether based on oral or other evidence, must not be set
aside unless clearly erroneous, and the reviewing court must
give due regard to the trial court's opportunity to judge
the credibility of the witnesses."). "However, we
review for correctness whether the facts are sufficient to
demonstrate reliability, since this is a question of
law." See State v. Hollen, 2002 UT 35, ¶
28, 44 P.3d 794 (citation and internal quotation marks
omitted); see also State v. Cruz, 2016 UT App 234,
¶ 16, 387 P.3d 618 ("Whether the trial court
correctly admitted the videotaped interviews into evidence
pursuant to rule 15.5 is a question of law that we review for
In making its reliability determination, the trial court
considered numerous factors and made extensive findings.
Among other things, the court found that the interview showed
Victim to be "a six-year-old that was articulate, aware
of the circumstances under which she was being interview[ed],
and . . . strong enough personality-wise and intelligent to
understand the questions and respond appropriately if she so
desired." The court also made findings regarding the
timing of the interview, the spontaneity of Victim's
statements, the types of questions asked, and whether
Victim's statements seemed rehearsed. The court found
that, overall, the allegations described "were
sufficiently consistent, " as Victim "told the same
or similar story throughout the interview"; that
Victim's statements contained "sufficient detail or
description" given her age; and that she
"volunteered information, often spontaneously."
Despite the court's findings, Roberts asserts that the
court's reliability determination must be reversed for
several reasons. He challenges the interviewing technique and
the court's assessment of it. He also challenges the
court's determinations about the length of time that
elapsed between the abuse and the interview and the