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State v. Roberts

Court of Appeals of Utah

January 11, 2018

State of Utah, Appellee,
v.
Mark Jess Roberts, Appellant.

         Third District Court, Salt Lake Department The Honorable Vernice S. Trease The Honorable Deno G. Himonas No. 101908693

          Nathalie S. Skibine, Attorney for Appellant

          Sean D. Reyes and William M. Hains, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.

          OPINION

          POHLMAN, Judge:

         ¶l 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 affirm.

         BACKGROUND

         ¶2 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."

         ¶3 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.

         ¶4 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.[1]

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 The jury convicted Roberts on all counts. Roberts appeals.

         ISSUES

         ¶9 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.

         ANALYSIS

         I. The CJC Interview's Admissibility

         ¶10 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. P. 15.5(a)(8).

         ¶12 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 correctness.").

         ¶13 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."

         ¶14 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 ...


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