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State v. Carrell

Court of Appeals of Utah

February 1, 2018

State of Utah, Appellee,
John Martin Carrell, Appellant.

         Third District Court, West Jordan Department The Honorable L. Douglas Hogan No. 141400776

          Ronald J. Yengich, Attorney for Appellant

          Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Kate A. Toomey concurred.

          HARRIS, Judge

         ¶1 Defendant John Martin Carrell (Defendant) drove a school bus for children with special needs. A jury convicted Defendant of sexually abusing two of these children in 2014. Defendant appeals his convictions, and asks us to consider two arguments. First, he asserts that the jury was improperly instructed as to the elements and required mental states for his charged crimes. Second, he contends that there was insufficient evidence to support his convictions. We find Defendant's arguments unpersuasive and therefore affirm his convictions.


         ¶2 In early 2014, Defendant had been a bus driver employed by Canyons School District (the District) for nearly five years. At that time, Defendant was assigned to drive "route 250, " a bus route for elementary-school-aged children with special needs. This route included two separate daily circuits, one in the morning and another in the afternoon. C.B. (First Victim), a five-year-old girl, was one of the students on Defendant's morning bus route. Z.B. (Second Victim), also a five-year-old girl, was one of the students on Defendant's afternoon bus route.

         ¶3 During the relevant time period, Defendant would usually pick up First Victim near her home at around 8:30 a.m. and drop her off at school at about 8:40 or 8:45 a.m. He would then pick her up at school after class ended, and drop her back off at home at approximately 11:00 a.m. On most mornings, only four or five students rode on Defendant's morning bus route. Defendant would then pick up Second Victim near her home at 11:30 a.m., take her to school, pick her up at school after class, and then drop her back off at home by 3:00 p.m. Defendant's afternoon bus route was also used by only a handful of students.

         ¶4 Per District policy, Defendant received training regarding various security and safety features of his bus, as well as training regarding permissible and impermissible physical interaction with the children. Specifically, the District informed Defendant that the children, while riding on the bus, were required to sit in "star seats, " which had seatbelt harnesses with straps across both shoulders and between their legs that buckled together near each child's lower midsection. The District further instructed Defendant that it was permissible for him to help the children get buckled into or unbuckled out of the star seats, but that it was normally not necessary or permissible for Defendant to touch them during this process. The District also instructed Defendant that, in all other contexts, physical contact with children was to be kept to a minimum. For instance, it was permissible for a bus driver to "high-five" or "fist-bump" with the children, and even to accept a "side hug" if the child initiated it, but Defendant was aware that bus drivers were not to accept any other type of hug and were not allowed to initiate physical contact of any kind. As part of this training, Defendant also learned that his bus came equipped with surveillance cameras which began recording when the ignition key was turned on and would continue to record for fifteen minutes after the ignition was turned off. These cameras recorded many of Defendant's interactions with both victims.[1]

         ¶5 At the time, it was also District policy, at least for route 250, for the students to remain on the bus in Defendant's care, even after the bus had stopped at the school, until the students' individual teachers came outside and physically escorted them from the bus. Because the bus did not always arrive at exactly the same time each day, and because the teachers did not always emerge from the school at the same time each day, the period of time in which the students remained on the bus under Defendant's care varied each day, from just one or two minutes to as long as eight or ten minutes. First Victim's teacher was often one of the last teachers to emerge from the school, a fact which often resulted in First Victim (along with one other girl) being one of the last students on the bus in the morning.

         ¶6 While Defendant scrupulously followed the District policy of keeping the students on the bus until their teachers retrieved them, he did not always follow the other policies. For example, he frequently helped the students unbuckle their star seat belts when the bus arrived at school. On several occasions during this unbuckling, Defendant passed by First Victim to help unbuckle other children, saving First Victim's unbuckling for last. Defendant succeeded in unbuckling the other children in just a few seconds' time, but routinely spent much longer-up to ninety seconds-unbuckling First Victim. Although the video footage does not always show the placement of Defendant's hands, in several instances he appears to continue touching First Victim even after she is unbuckled-the video shows First Victim's legs and shoulders visible in positions that would not be achievable were she still buckled in to the star seat, and shows that Defendant's arms were extended down towards her body. In one instance, First Victim struggles to emerge from the seat into the aisle while Defendant blocks her progress with his body.

         ¶7 After the children were unbuckled each morning, they were allowed to freely move about the interior of the bus until their teachers came to meet them. While other students moved about the bus playing, First Victim often gravitated toward Defendant, who usually passed the time seated in the driver's seat at the front of the bus. As First Victim approached him, Defendant often took her by the hand, shoulder, or side and pulled her towards him, positioning her either to sit on his lap or stand between his legs with her back to the other children and to the bus door. While First Victim and Defendant were positioned in this manner, Defendant's hands often were not visible to the camera. However, on several occasions, the video footage shows Defendant's left hand positioned somewhere on the lower midsection of First Victim's body, while his right hand was either extended towards the lower part of her body or extended straight out, holding her backpack at an angle that placed it between her body and the door of the bus. In some instances, Defendant's right hand can be seen cupping, resting on, or moving across First Victim's buttocks, and in one instance Defendant's hand appears to be under First Victim's skirt. In several instances, while Defendant's left hand was somewhere out of view on or near the lower front of First Victim's body, Defendant's left shoulder can be seen moving up and down in short, rhythmic motions. On some occasions, Defendant moved his head close to First Victim's head and can be seen touching her face with his, apparently nuzzling or kissing her. Several times, after placing his left hand somewhere out of sight but apparently on or near the lower front of First Victim's body, Defendant brought that same hand to his face and can be seen seemingly smelling or licking his fingers.

         ¶8 Whenever a teacher approached the bus to collect children from it, Defendant pushed First Victim away from him so that she was standing at some distance away from him while the teacher was present. Often, once the teacher departed, Defendant pulled First Victim back towards him and again apparently placed his left hand somewhere on the lower front of her body. In one of these instances First Victim can be heard telling Defendant, "You've been pulling my pants up."

         ¶9 The cameras also recorded many of Defendant's interactions with Second Victim. On several occasions the video footage shows Defendant unbuckling Second Victim and then, after she was unbuckled, placing his hands on her clothed genitals for several seconds. In one instance, Defendant also placed his left hand between Second Victim's legs and lifted her off the floor while holding her clothed genitals. At the time, Second Victim was not yet verbal, but appeared to struggle during some of these interactions.

         ¶10 On April 22, 2014, while First Victim's father was getting her ready for school, she remarked that she "can ride on the bus seat today again." First Victim's father asked her if the driver was letting her pretend to drive the bus, and she responded by saying "no" but said Defendant let her sit on his lap and "[made] it soft for [her]." As she said this, First Victim rubbed her crotch. The next day, First Victim's father raised the subject again and asked her to clarify what she did when she sat on the bus seat. In response, First Victim once more rubbed her crotch and said, "Does that feel good?" After this conversation, First Victim's father called the District and informed Defendant's supervisor that he was concerned that Defendant might be sexually abusing his daughter.

         ¶11 The District then placed Defendant on administrative leave, obtained the video footage from Defendant's bus, and referred the matter to the police. On May 1, 2014, after the police had reviewed the video footage pertaining to First Victim, a detective interviewed her. During this interview, First Victim was largely unresponsive to the detective's questions. She was quiet, did not make eye contact, looked down at her hands, and responded in the negative when asked if she knew why she was being interviewed. When prompted that she was being interviewed because her father said something might have happened to her, First Victim responded by saying, "I've got a sore throat." Despite multiple attempts to rephrase the question, First Victim continued to remain quiet, to refuse to make eye contact, and to state that she did not know why she was being interviewed. After the detective pressed the issue several times, First Victim finally said that Defendant sometimes kissed her on the bare skin of her upper chest. She provided no further relevant information to the detective at this time. Following this interview, and after reviewing the video footage, the State charged Defendant with 23 counts of aggravated sexual abuse of a child for his interactions with First Victim.

         ¶12 First Victim began meeting with a therapist. During therapy, First Victim was more forthcoming about what she had previously told her father. Upon learning this, the same detective conducted a second interview with First Victim on February 18, 2015. This time, First Victim was much more responsive, made significantly more eye contact, rarely looked down at her hands, and was smiling and happy in the detective's company. During that second interview, First Victim told the detective that Defendant touched her "peepee" at least once per day. She clarified that these touches made her feel uncomfortable, that Defendant would ask her whether the touching hurt or made her feel good, and that the touches were with Defendant's hand and were sometimes under her clothes. Towards the end of the interview, the detective asked First Victim if anyone had "told her what to say." First Victim answered in the affirmative and said that her therapist had told her what to say. Subsequent to this interview, the therapist clarified for the detective that she had told First Victim that the detective was a friend of the therapist's and that it was okay for First Victim to tell the detective the truth.

         ¶13 Following Defendant's arrest, Second Victim's father contacted the State and asked that prosecutors review the video footage during periods of time when Second Victim rode the bus. Second Victim's father informed the State that shortly after Defendant became Second Victim's bus driver, Second Victim began having "behavioral issues" on the bus, including becoming angry and "acting out." Second Victim also began "cry[ing] not to go on the bus." Although Second Victim was nonverbal and could not be effectively interviewed, after reviewing the video footage the State amended its information to charge Defendant with an additional ten counts of aggravated sexual abuse of a child for his interactions with Second Victim.

         ¶14 At trial, the State relied heavily on the previously described video footage, excerpts of which were played for the jury. In addition, First Victim's father testified about his conversations with First Victim that led him to contact the District. First Victim also testified at trial, and stated that Defendant touched her "peepee" "like every day" she rode the bus, usually about three times each day. Second Victim's father also testified about her behavioral changes after Defendant became her bus driver.

         ¶15 At the conclusion of the State's case-in-chief, Defendant moved for a directed verdict dismissing all charges against him. He argued that the evidence presented was not sufficient to establish that he had touched First and Second Victim "with the intent to arouse or gratify [his] sexual desire, " and that there was no evidence he intended to take indecent liberties with either victim. The trial court denied Defendant's motion and ruled that "based upon the evidence presented during the State's case in chief . . . there [had] been sufficient evidence presented from which a jury acting reasonably could convict [Defendant]."

         ¶16 Before the jury began deliberating, Defendant made two objections to the State's proposed jury instructions. First, he objected to the manner in which the instructions presented the mental state requirements for aggravated sexual abuse of a child. The elements instructions informed the jurors that they could not find Defendant guilty on any count unless they found both (1) that Defendant "[k]nowingly or intentionally [] touched any part of the genitals [] or buttocks of [First Victim] or otherwise took indecent liberties with [First Victim], " and (2) that Defendant did so "[w]ith the intent to arouse or gratify the sexual desires of any person."[2] Separate instructions defined the terms "intentionally" and "knowingly."[3] Defendant argued that these instructions were confusing because they did not "properly instruct the jury which intent goes to which element." In response, the trial court noted that the instructions followed the language of Utah's model jury instructions, and expressed the belief that "as the jury goes through the element[s] instruction, when they get to a word that's a defined term in the instructions, they'll look to that definition." Accordingly, the trial court overruled Defendant's objection with respect to the mental state instructions.

         ¶17 Second, Defendant objected to the inclusion, in the elements instruction, of the phrase "or otherwise took indecent liberties with [First or Second Victim], " and to the inclusion of the language involving "buttocks" with respect to First Victim. Defendant argued that because First Victim testified that he touched her "peepee" but had not described him touching her buttocks, the jury should not have been instructed that they could consider whether he touched First Victim's buttocks. In addition, Defendant argued that the evidence the State presented did not demonstrate that he "took indecent liberties" with either First or Second Victim, and that it was therefore inappropriate to instruct the jury on that element. In response, the trial court found that "the video speaks for itself" and expressed its belief that "the video that has been presented in court is reflective and representative of what the instructions contain." Accordingly, the trial court overruled Defendant's objection with respect to the "buttocks" and "indecent liberties" instructions to the jury.

         ¶18 After deliberating, the jury convicted Defendant on 19 of the 33 charged counts, including 13 of the 23 counts regarding First Victim and six of the ten counts regarding Second Victim. Defendant appeals.


         ¶19 Defendant raises three issues on appeal. First, he contends that the trial court erred by allowing the term "buttocks" (as to First Victim) and the language describing the "indecent liberties" theory of aggravated sexual abuse of a child (as to both victims) to remain in the jury instructions. "Whether a trial court properly instructed the jury is a question of law, which we review for correctness." Cheves v. Williams, 1999 UT 86, ¶ 37, 993 P.2d 191 (citation and internal quotation marks omitted). If an error is found in jury instructions, reversal is warranted only if there is a reasonable probability that the error affected the outcome of the case. State v. Tinoco, 860 P.2d 988, 990 (Utah Ct. App. 1993).

         ¶20 Second, Defendant contends that the trial court erred by presenting the prosecution's proposed mental state instructions to the jury. Again, whether a trial court properly instructed a jury is a question we review for correctness. Id. at 989-90.

         ¶21 Finally, Defendant contends that there was insufficient evidence to convict him and that the trial court therefore erred in denying his motion for a directed verdict.[4] When considering a challenge to the sufficiency of the evidence, we review the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict. State v. Germonto, 868 P.2d 50, 55 (Utah 1993). We will reverse a guilty verdict for insufficient evidence only when the evidence is so inconclusive or inherently improbable that reasonable minds must ...

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