District Court, Salt Lake Department The Honorable James T.
Blanch No. 151906548
Deborah L. Bulkeley, Attorney for Appellant
D. Reyes and Kris C. Leonard, Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judges Gregory K.
Orme and Jill M. Pohlman concurred.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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
The jury convicted Reid as charged for one count each of
rape, forcible sodomy, forcible sexual abuse, and witness
tampering. Reid appeals.
AND STANDARDS OF REVIEW
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
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 ...