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State v. Reid

Court of Appeals of Utah

July 27, 2018

State of Utah, Appellee,
v.
Brian Scott Reid, Appellant.

          Third District Court, Salt Lake Department The Honorable James T. Blanch No. 151906548

          Deborah L. Bulkeley, Attorney for Appellant

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

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

          HAGEN, JUDGE

         ¶1 Brian Scott Reid appeals his convictions for rape, forcible sodomy, forcible sexual abuse, and tampering with a witness. On appeal, he raises multiple issues that he did not preserve at trial. Because Reid has failed to establish a claim of ineffective assistance of counsel or plain error, we affirm.

         BACKGROUND

         ¶2 The victim, K.R., lived in her grandmother's house, along with other family members including her uncle, Reid. Due to a learning disability, K.R. had been enrolled in special education classes until she finished high school. At twenty-three years old, K.R. did not have a job but helped her grandmother with household chores. K.R.'s bedroom was located in the basement, down the hall from the room Reid shared with his wife.

         ¶3 At trial, K.R. testified that Reid sexually assaulted her in her bedroom. She was folding clothes and watching a movie when Reid walked in and said, "[L]et's see what my teddy bear feels like." K.R. testified that Reid grabbed her, pushed her onto her bed, and lay down beside her. K.R. asked him what he was doing and "told him nicely to please get out," but Reid told her his back hurt and he just needed to relax. Reid then slipped his hands underneath her shirt and bra and grabbed her breasts. K.R. told him to stop, but Reid whispered, "Be quiet or I'm going to harm you."

         ¶4 According to K.R., Reid then grabbed her by her legs and pulled her to the foot of the bed. He pulled down her pants and underwear, held her down with his hands on her thighs, and licked her "down there." She told him to stop and tried to push herself up, but he was holding her down with his weight and told her to be quiet. Reid then coated his penis with lotion and had inserted it "halfway" into her vagina when K.R. managed to push him away. K.R. told Reid to get out of her room and he left, but only after he threatened to harm her if she told anyone about the assault.

         ¶5 The next day, K.R. decided she needed to tell her grandmother what Reid had done. After K.R. told her about the sexual assault, her grandmother called Reid's wife upstairs so that K.R. could tell her what had happened. Reid's wife immediately drove K.R. and her grandmother to the police station where K.R. reported the sexual assault. The police talked to K.R. for a short time then instructed her to go to the hospital for a sexual-assault examination.

         ¶6 At the hospital, K.R. told the examining nurse that Reid had grabbed her, laid her on the bed, and then lay down beside her and "started doing uncomfortable things." She stated that Reid had pulled down her pants and underwear and grabbed her breasts "really hard" under her clothes. K.R. said she told Reid to stop, but he threatened to hurt her if she screamed. K.R. told the nurse that Reid "shoved his dick inside" her, but she pushed him off. Before he left the room, however, Reid threatened to harm her if she told anyone. In response to the nurse's specific questions, K.R. stated that there had been penetration, that lotion had been used as lubrication, and that Reid's mouth had been in contact with her genitalia.

         ¶7 After gathering this information, the nurse conducted a physical examination. The nurse noted and photographed a blue and purple circular bruise on K.R's left outer thigh. The bruise measured 2.5 centimeters, consistent with the size of a fingertip. Photographs from the pelvic examination also revealed some redness at the entrance to K.R.'s vagina. The nurse testified that her findings during the physical examination were consistent with the information K.R. disclosed about the assault.

         ¶8 During the examination, the nurse also collected separate swabs for testing from the external parts of K.R.'s genitalia, referred to as the vulvar, and from inside her vagina. Both the vulvar swabs and the vaginal swabs tested positive for the presence of saliva as well as male DNA that matched Reid's profile.[1]

         ¶9 Two detectives were assigned to the case and spoke briefly with K.R. immediately after her examination. The detectives told her not to return home until Reid was out of the house. With the help of the Legal Aid Society of Salt Lake, K.R. later petitioned for and received a protective order against Reid to keep him away from her grandmother's house.

         ¶10 Detectives interviewed Reid later that day. Reid initially told the detectives that he did not know why he was being interviewed and could not remember what had happened the day before. Reid denied having any interaction with K.R. on the date of the alleged sexual assault, but he later recalled speaking with her in the hallway outside of his bedroom. He maintained that he did not go into K.R.'s room and did not have any sexual relations with her. He told the detectives that his wife suspected him of having an affair and was "setting him up" by having K.R. make false accusations.

         ¶11 The following week, detectives formally interviewed K.R. During this interview, K.R. mentioned the use of lotion and the fact that she had been watching a movie at the time of the assault. K.R. also pointed out that she had developed additional bruises on her legs since the assault, which the detectives then photographed. At trial, K.R. testified that some of the bruising shown in the photographs occurred earlier from an unrelated incident, but that the remaining bruises had not been there before the sexual assault. She testified that the new bruises were in the same place where Reid had grabbed her legs to pull her to the end of the bed.

         ¶12 During direct examination at trial, Reid admitted that he had a sexual encounter with K.R. on the day in question, but he claimed that the encounter was consensual. Reid testified that K.R. had invited him into her room to watch a movie and that they had started talking about relationships. While watching a sex scene in the movie, they became intimate and Reid licked his finger and rubbed the outside of K.R.'s vagina. Reid then suggested that they use lubricant, and she told him to get the lotion. Reid stated that he touched his penis to K.R.'s vagina, then stopped and said, "I don't think we should be doing this." He then left the room.

         ¶13 Reid admitted that he initially lied to police. However, he claimed that he could not think clearly at the time because he "had taken a bunch of medication" before that interview and was afraid after being accused of "taking liberties" with K.R. According to Reid, the first time he met his attorney, he had told his attorney the same story he told the jury.

         ¶14 On cross-examination, the State questioned Reid about a recorded telephone call he had made to his wife from jail. During the conversation with his wife, Reid said he had told his attorney that his bank records would prove that he was at a motel on the day of the alleged sexual assault and could not have committed the crime. When confronted with this information, Reid testified that he had been lying to his wife at that time and that he had never told his attorney that story.

         ¶15 The jury convicted Reid as charged for one count each of rape, forcible sodomy, forcible sexual abuse, and witness tampering. Reid appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶16 On appeal, Reid raises six grounds for reversal, none of which were preserved. "When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. Our supreme court "has recognized three distinct exceptions to preservation: plain error, ineffective assistance of counsel, and exceptional circumstances." Id. ¶ 19. "When an issue is not preserved in the trial court, but a party seeks to raise it on appeal, the party must establish the applicability of one of these exceptions to persuade an appellate court to reach that issue." Id.

         ¶17 As to the first three issues, Reid argues the ineffective-assistance-of-counsel exception to the preservation rule. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of ...


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