District Court, Salt Lake Department The Honorable Vernice S.
Trease No. 111905901
J. Seppi, Attorney for Appellant
D. Reyes and William M. Hains, Attorneys for Appellee.
Ryan M. Harris authored this Opinion, in which Judges Gregory
K. Orme and Michele M. Christiansen concurred.
A jury convicted Revere Burnett of six criminal charges,
including rape and aggravated sexual abuse of a child.
Burnett contends on appeal that he received ineffective
assistance of counsel during his trial, because his attorney
failed to object to the testimony of the State's expert
psychiatrist. After review, we conclude that much of the
expert's testimony was proper, and that objection to most
of it would therefore have been futile. However, we agree in
part with Burnett's arguments, and conclude that his
trial counsel was indeed ineffective for failing to object to
that part of the expert's testimony in which the expert
inappropriately bolstered the victim's credibility.
Accordingly, we reverse Burnett's convictions and remand
the case for a new trial.
In 2010, after sixteen years of marriage, Burnett and his
wife (Mother) divorced, and Mother was awarded sole legal
custody of their three teenage children: Victim, her sister
(Sister), and her brother (Brother). The divorce decree
granted Burnett parent-time with all three children. In May
2011, less than a year after the divorce, Burnett raised the
possibility of increasing the quantity of his parent-time
with the children. Within days of Burnett broaching that
subject, then-fifteen-year-old Victim disclosed to Mother
that Burnett had sexually abused and raped her for many
After investigating the matter, the State charged Burnett
with committing various crimes upon Victim, including five
counts of aggravated sexual abuse of a child, first degree
felonies, see Utah Code Ann. § 76-5-404.1(4)
(LexisNexis 2017); two counts of rape of a child, first
degree felonies, see id. § 76-5-402.1; and two
counts of sodomy upon a child, first degree felonies, see
id. § 76-5-403.1.
At trial, Victim testified that Burnett first started abusing
her when she was "about three or four years old"
and that the abuse continued until she was "[a]bout
11." She did not "remember every single incident,
" but could recall several incidents with specificity.
Victim described Burnett digitally penetrating her vagina and
anus. She further described Burnett forcing her to manually
and orally stimulate him. And she also testified that Burnett
raped her on more than one occasion, both vaginally and
Victim testified that, during the years Burnett abused her,
she often felt physically ill, even when the abuse was not
actually happening. She experienced headaches, nausea, upset
stomach, occasional vomiting, and memory loss. These symptoms
progressed over time, and Victim later experienced fainting,
pseudo-seizures, hallucinations, and age regression.
Eventually, Victim was diagnosed with conversion disorder, a
condition "where a person takes psychological distress
and expresses it in physical symptoms or ways." Victim
started cutting herself when she was thirteen, and she also
experienced suicidal ideations that continued throughout the
time of trial.
When asked if she had told anyone about the abuse while it
was ongoing, Victim stated that she had not. She explained
that she "didn't know any different, " and that
she did not initially tell anyone about the abuse because she
was "scared." She stated that Burnett told her that
bad things would happen to her family if she disclosed the
abuse, and that she "wasn't supposed to tell anyone,
that it was normal." Eventually, Victim told Mother, as
well as Victim's psychologist, that Burnett had sexually
The State called Dr. David Corwin (Expert) as an expert
witness at trial. Expert is a psychiatrist, and is the
director of forensic services for the pediatrics department
at the University of Utah, and is board certified in
psychiatry, child psychiatry, and forensic psychiatry. He
described his practice as focused on working with individuals
who had been sexually abused as children, and described for
the jury several publications he had authored on child sexual
abuse, as well as several awards he had received for his work
with victims of child sexual abuse.
Expert readily acknowledged that he had not treated,
interviewed, or examined Victim, and that he was not offering
any opinion about whether Victim had actually been abused.
Instead, the State explored two main subjects with Expert.
First, the State asked Expert about how he, as a trained
expert, endeavors to tell the difference between cases in
which the victim is advancing truthful claims of sexual
abuse, and cases in which the abuse allegations are
fabricated. Second, the State asked Expert whether, in his
experience, he was aware of certain signs or symptoms that
might alert him that a particular child may have been
With regard to the first subject, Expert began by testifying
that it is "most common" for abuse victims to delay
disclosure of the abuse, and offered many reasons for this
phenomenon. For example, a child might not know that he or
she should disclose instances of sexual abuse; a child might
feel loyal to the abuser or feel affection for the abuser; or
the abuser might warn or threaten the child. He testified
that disclosure is more common in adolescents than in
children because adolescents "are beginning to
psychologically separate themselves from their parents, and
they can begin to conceive of surviving apart from their
parents." In contrast, "[v]ery young children
are really one with their parents and totally dependent upon
their parents." Significantly, he stated that divorce,
and its attendant changing family dynamics, is one event that
can "release" children from their previous
reluctance to disclose, although he acknowledged that there
exists a "small percentage" of cases in which
children from divorced families "fabricat[e]" abuse
allegations. He stated that those are "the most
difficult cases of all, " and that it is part of his
professional duties to "try to figure out which"
instances are the ones that involve fabricated allegations.
Indeed, during re-direct examination, the State asked
what he looks for in "making those evaluations" in
cases "where there is a custody dispute and there are
allegations of child sexual abuse." In response, the
following colloquy occurred between the prosecutor and
A. I look at a lot of things, because those are the most
difficult cases that a forensic expert like myself is asked
to look at. And that's because the rate of both
disclosure of actual sexual abuse goes up when a family
breaks up, because the dynamics that keep it secret are gone,
but also the possibility of a misperception, either by a
child or more commonly an adult attributing it to a child . .
[I]n a small percentage of cases there are either children
who have lied or parents who somehow get their kids to say
things that are false. And even though that's a very
small percentage in most studies of this topic, it's very
troubling, because sexual abuse is such a serious thing. . .
Q. Now, in-you said that that's a small percentage of
these cases. In those cases are the children typically
A. Yes. Yeah, the hardest cases are the three-, four-[or]
Q. So . . . to clarify, in these cases where there is an
allegation like a child sexual abuse that's false, it
would involve children that are younger on the
A. Well, in terms of the divorce custody and the possibility
of influence, it's easier to do that with a very young
child, because they are more susceptible to being misled, in
terms of interviewing or what adults say to them. In older
kids, they are more capable of making outright false
allegations, to actually make something up. And in the
studies that have been done, those are usually kids with an
ax to grind. They are trying to influence where they are
living. And they usually allege garden-variety sexual
intercourse, vaginal intercourse.
Q. So what do you mean by garden variety?
A. Really simple, straightforward, as opposed to more
strange, more elaborated, more detailed accounts.
Q. So, for example, just a disclosure that he touched my
private part, without any more details, or he put his penis
in my vagina, without any additional details?
A. Well, that would be sort of vaginal intercourse, put his
penis in my vagina. The touching-you know, when the
allegations are less severe, when I am trying to look at
these various hypotheses, in my mind I think, well, if this
is a false allegation why not go ahead and make a, you know,
full-blown, culpable sort of clear ...