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State v. Burnett

Court of Appeals of Utah

May 3, 2018

State of Utah, Appellee,
Revere Burnett, Appellant.

          Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 111905901

          Lori J. Seppi, Attorney for Appellant

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

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

          HARRIS, JUDGE

         ¶1 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.

         BACKGROUND [1]

         ¶2 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 years.

         ¶3 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.[2]

         ¶4 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 anally.

         ¶5 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.

         ¶6 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 abused her.

         ¶7 The State called Dr. David Corwin (Expert) as an expert witness at trial.[3] 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.

         ¶8 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 sexually abused.

         ¶9 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."[4] 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.

         ¶10 Indeed, during re-direct examination, the State asked

         Expert 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 Expert:

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 younger?
A. Yes. Yeah, the hardest cases are the three-, four-[or] five-year-olds.
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 ...

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