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State v. Klenz

Court of Appeals of Utah

October 25, 2018

State of Utah, Appellee,
v.
Roger Glen Klenz, Appellant.

          First District Court, Brigham City Department The Honorable Brandon J. Maynard No. 151100151

          Gregory W. Stevens, Attorney for Appellant.

          Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee.

          Judge Jill M. Pohlman authored this Opinion, in which Judges Kate A. Toomey and Ryan M. Harris concurred.

          OPINION

          POHLMAN, JUDGE.

         ¶1 Defendant Roger Glen Klenz appeals his convictions on five counts of aggravated sexual abuse of a child, all first degree felonies, and five counts of forcible sexual abuse, all second degree felonies. He argues that the trial court erred by denying his motion for a bill of particulars, admitting evidence of his alleged other bad acts, admitting into evidence a detective's statements having bearing on the credibility issues in the case, and denying his motion to arrest judgment. We affirm.

         BACKGROUND[1]

         The Charges

         ¶2 In 2015, when Defendant's daughter (Victim) was fifteen years old, she told her mother and a family friend that Defendant had sexually abused her for around eight years. Victim and Defendant had gotten into a fight earlier that day, and Victim was crying. Victim initially refused to disclose why she was upset, explaining that Defendant told her that she "couldn't tell." Eventually, the family friend asked whether Defendant had molested her, and Victim said yes. When asked whether it was "more than that," Victim answered, "[Y]eah, it was a lot more than that."

         ¶3 Victim reported these allegations to authorities, and Defendant was arrested and interviewed by a detective (Detective). The State charged Defendant with thirty counts of sexual offenses. Specifically, he was charged with five counts of aggravated sexual abuse of a child for conduct occurring over a seven-year period ranging from "on or about November 03, 2006 through November 02, 2013," when Victim was under the age of fourteen. He was charged with five counts of rape of a child and five counts of sodomy upon a child. The Amended Information alleged that these crimes occurred over the two-year period from "on or about November 03, 2011 through November 02, 2013," also when Victim was under the age of fourteen. Additionally, Defendant was charged with five counts of rape, five counts of forcible sodomy, and five counts of forcible sexual abuse. The Amended Information alleged that these offenses occurred over about a two-year period from "on or about November 03, 2013 through June 6, 2015," after Victim turned fourteen.

         Defendant's Motion for a Bill of Particulars

         ¶4 Defendant filed a Motion for a Bill of Particulars and Demand for a More Definite Statement of the Date, Time and Place of the Alleged Offenses. Noting that he was charged with thirty counts of sexual offenses against Victim and asking for "more than a broad statement that the alleged crimes took place within spans of two years or seven years," Defendant asserted that he was entitled to "sufficiently precise information of the date, time and place of an alleged offense" in order to prepare a defense and to uphold his due process rights.

         ¶5 The trial court denied Defendant's motion, concluding that Defendant's constitutional right to notice had "already been satisfied by the information." It observed that a "'core defense'" of "'I didn't do it'" is not time-sensitive and concluded that Victim was "not required to give precise dates of each alleged offense." (Quoting State v. Taylor, 2005 UT 40, ¶ 18, 116 P.3d 360.) Thus, because Defendant was "able to prepare a defense and [was] not in danger of multiple prosecutions for the same crime," a bill of particulars was unnecessary.

         The Motion in Limine About Other Bad Acts Evidence

         ¶6 Before trial, the State moved for the admission of evidence of four alleged incidents of other bad acts that occurred outside Box Elder County.[2] First, when Victim was fourteen years old and staying with extended family following her grandmother's death, Defendant allegedly had sex with Victim after finding her crying on a bed and suggesting she was upset about a boy and he knew "what [would] make [her] feel better" (the funeral incident). Next, on two trips to softball tournaments when Victim was thirteen or fourteen, Defendant allegedly had sex with Victim in their hotel rooms (the softball trip incidents). Finally, when Victim was approximately thirteen years old, Defendant allegedly had sex with Victim in a van parked in a store parking lot (the parking lot incident). According to the State, the other bad acts evidence was admissible under rule 404(c) of the Utah Rules of Evidence as prior instances of sexual abuse and under rule 404(b) as it was offered for the proper noncharacter purposes of establishing Defendant's intent and of showing "Victim's credibility, . . . Defendant's method of using [Victim's] relationship with boys to justify the abuse, . . . [and that Defendant] used opportunities when he was alone with [Victim] to abuse her."

         ¶7 The trial court granted the State's motion to admit the other bad acts evidence, concluding that it was admissible under rule 404(c). That rule allows, "[i]n a criminal case in which a defendant is accused of child molestation," the admission of "evidence that the defendant committed any other acts of child molestation to prove a propensity to commit the crime charged." Utah R. Evid. 404(c)(1). The court stated that "this enumerated purpose from rule 404 applies to the unique events the Victim can testify to in order to establish the context and credibility of her allegations." The court similarly concluded that the evidence was relevant under rules 401 and 402.

         ¶8 The court then conducted a balancing analysis under rule 403. On the one hand, it concluded that the evidence of uncharged instances of sexual abuse in this case had probative value because it allowed Victim "to provide testimony about the scope and context of the abuse." On the other hand, because the jury would be determining "what, if any, events occurred based on [its] determination of credibility of the witness," there would be a limited danger of unfair prejudice given that Victim would be describing only "additional incidents of abuse." (Citing State v. Cox, 2007 UT App 317, ¶¶ 33-34, 169 P.3d 806.) Accordingly, the court found that "the balancing test of rule 403 allow[ed] for the admissibility of the evidence."

         The Motion in Limine and the Interview Video

         ¶9 On the eve of trial, Defendant moved to exclude certain portions of the video recording of his interview by Detective on the day of his arrest. He sought to exclude portions that "constitute inadmissible opinion testimony by the interrogating Detective about the strength of the evidence, [Detective's] comparison of this case to other cases, and [Detective's] belief in the credibility of the alleged victim." Defendant asserted that allowing the jury to view these portions would "usurp [its] function" and that the probative value of the evidence was substantially outweighed by the dangers of unfair prejudice or confusing or misleading the jury.

         ¶10 The court heard oral arguments on the issue during trial.[3]Defendant clarified that he objected only to the portions of the video during which Detective opined about the strength of the evidence and Victim's credibility. The State opposed redacting the video. The prosecutor explained that the video was necessary and "very compelling evidence" because it showed that Defendant never asked questions about the specific details of the alleged sexual abuse that Detective referenced during the interview and because it showed Defendant's "bizarre demeanor and behavior," which included laughing and joking. The prosecutor argued that if the defense asserted that Defendant was wrongfully accused, then the State intended to rely on the video to argue that Defendant's reactions during the interview were "very unusual" and "not the kind of behavior that [one] would expect to see from somebody who believes he's been wrongfully accused." The prosecutor also argued that redacting the video would suggest to the jury that the State had "something to hide" and asserted that all of Detective's statements were necessary to "help put things in context."

         ¶11 The trial court denied Defendant's objection to portions of the video. It distinguished the cases Defendant cited in support of his position because they related specifically to instances of officers accusing suspects of lying and therefore were not "persuasive" with respect to "whether or not the video should come in." The court determined that because "none of [Detective's statements in the video] talk about any type of lying or deceit" and because the statements were merely "techniques" Detective used to talk to a suspect, it would not exclude any portions of the video.

         The Trial

         ¶12 The case proceeded to a jury trial in 2016. Victim testified that Defendant started abusing her when she was seven years old and they lived in another state, and that it continued when they moved to Utah the next year. When asked to describe the first instance of abuse in Utah, Victim recalled that late at night while her mother was at work, Defendant came into her room and explained that he was "going to snuggle and stuff" with her. While her younger sister slept on the top bunk of the bed, Defendant touched Victim's breasts with his hands, and Victim let it happen because she thought it was normal. The touching then "escalated" to Defendant touching Victim's buttocks and vagina over her clothes.

         ¶13 Victim testified that this kind of touching was "common" but that Defendant also touched her under her clothes. When asked to describe one such incident, Victim said that Defendant told her he "wanted to snuggle," but then he "put his hand under [her] shirt and started taking it off and touching [her] boobs." He also "took off [her] pants and [her] underwear" and started "rubbing" her vagina.

         ¶14 Victim estimated that when she was younger, Defendant would come into her room and touch her "five to seven times a week," stating that all the instances of touching were "kinda all mashed [together] in [her] head." Defendant's touching decreased in frequency as Victim grew older, yet it continued on a regular basis. Victim admitted that she did not disclose all of Defendant's abuse when she was first interviewed by authorities, explaining that she was "scared" and "not really comfortable" talking to the interviewer. But she testified that the touching occurred regularly both when she was younger than fourteen and after she turned fourteen.[4] She also testified that it occurred in her bedroom, in Defendant's bedroom, and on the couch in the basement living room.

         ¶15 According to Victim, her older brother (Brother) "sometimes" walked in while Defendant was abusing her. In particular, once Brother walked out of his bedroom, prompting Defendant to roll off the basement living room couch and throw a blanket over her (the couch incident). Though she did not recall whether Defendant was dressed, she remembered that she was not, and when Brother saw them, she covered up and "acted like [she] was asleep." Brother then "darted into the bathroom."

         ¶16 Victim testified about the other bad acts evidence that the trial court had deemed admissible, including the funeral incident, the softball trip incidents, and the parking lot incident.[5]The court instructed the jury that it could consider the other bad acts evidence for the limited purposes of "demonstrating an ongoing behavior pattern of the defendant" and/or "to show the defendant's intent to arouse or gratify the sexual desire of any person."[6]

         ¶17 Brother also testified. He was eighteen years old at the time of trial and lived in the downstairs bedroom near the basement living room. Brother testified that in 2015, when he finished working the 5 p.m. to 1 a.m. shift at a fast-food restaurant, he would return to see Victim and Defendant on the couch in the basement living room. Sometimes Defendant and Victim would be on the couch watching a movie and it was "totally normal." But "[s]ome nights," Victim and Defendant would "both pop up" and "quickly sit[] back up" from lying on the couch, and as Brother approached, Victim would "adjust[] her bra straps" and clothes and Defendant would ask Brother about work in a "very quick and panicked tone." Brother said that he encountered Defendant and Victim on the couch like this more than ten times. On some occasions, Brother could not tell what Defendant and Victim were wearing; at other times, Brother observed that Victim was wearing clothes although he testified that "most of the time" she was not.

         ¶18 Brother also described the couch incident. See supra ¶ 15. According to Brother, one night when he emerged from his bedroom to go to the bathroom, he saw Victim on the couch, and, "as [he] walked out and opened the door, [Defendant] rolled off the couch" and either Victim or Defendant quickly covered Victim with a blanket. Though he could not see what Defendant was wearing, Brother saw that Victim was nearly naked and "exposed," with her underwear down to her knees and her shirt up to her shoulder, before he "quickly ducked into the bathroom." When Brother came out of the bathroom, Defendant was not there, but Victim had on sweatpants and a t-shirt and appeared asleep. He testified that this incident left "a very vivid picture" in his mind.

         ¶19 Long before the couch incident, Brother saw Victim and Defendant leave Defendant's upstairs bedroom while everyone else was downstairs. According to Brother, as she left, Victim fixed her bra strap, putting it back on her shoulder, and adjusted her shirt. This episode "seemed very irregular" and "weird" to Brother, and he testified that this was the first "red flag" that "something was wrong." Brother suspected sexual abuse, estimating that his concerns arose around 2013. But because he was afraid of losing his dad and "didn't want to believe it," Brother did not tell anyone.

         ¶20 Brother detailed other unusual behavior. For example, he explained that Defendant gave people massages but the ones he gave to Victim, unlike those he gave to Victim's mother, were more "in depth," longer, and involved the use of oils. Brother also described a time when he heard "hushed whispers and face slaps" while in his bedroom. When he walked out of his room, he saw Victim crying, and when he asked why, Victim said, "I cannot live here anymore . . . I just want to move out." Defendant then came downstairs, and the conversation ended.

         ¶21 Brother testified that, after Victim reported her allegations against Defendant, Victim told Brother about where and how often the abuse happened, but "[t]here wasn't a lot said" and she "never went into extreme detail." And Brother did not know the "basic outline" and time frame of what happened until Child Protective Services interviewed him. On cross-examination, Brother acknowledged he never saw Defendant actually touch Victim in an inappropriate way.

         ¶22 Detective testified for the State. During his testimony, he stated that during the interview Defendant did not ask him for the details of the abuse allegations. He explained that "[p]eople that have not committed something are very adamant and strong with their denials." When the prosecution asked whether anything about Defendant's demeanor caught his attention, Detective said, "Quite a few things." When asked to specify, Detective stated, "The lack of defiance, joviality when I would ask a question and then the excited utterances of oh geez, wow." Regarding lack of defiance, Detective explained, "If somebody is innocent, then they're always in my face, they're saying, there's no way this happened, you're lying, I can't believe you did this, this isn't true, this is false, things like that." Regarding excited utterances, Detective stated that "as [he] would explain the charges, following that, it would be, a: oh geez, or wow, things like that. Not common." Defendant did not object to this testimony bearing on his demeanor.

         ¶23 The State played the video of Defendant's interview during its case-in-chief. When it was played, the court instructed the jury, "The statements of Detective . . . on the video are not evidence or an expert opinion concerning evidence. Instead, they are and should be considered only as [Detective's] investigative technique."[7]

         ¶24 Testifying on his own behalf, Defendant denied touching Victim in a sexual way. He stated he loved Victim and would never hurt her.

         ¶25 In closing argument, the State argued that the case turned largely on corroboration and credibility. It referred to the instances of Victim's testimony that were corroborated by Brother, and the instances of Victim's testimony that were corroborated by Defendant. The State also asserted that, during his interview, Defendant did not comment or behave like "a person who's being wrongfully accused." Defendant countered in his closing argument that the video of the interview showed that "he made no admissions despite . . . [Detective's] efforts over and over again to try and trick him into believing that [Detective] had something to actually support [Victim's] allegations when in fact [he] didn't."

         The Verdict

         ¶26 The jury returned a mixed verdict. It acquitted Defendant of all counts of rape of a child, rape, sodomy upon a child, and sodomy. But it found him guilty on all five counts of aggravated sexual abuse of a child and all five counts of forcible sexual abuse.

         The Motion to Arrest Judgment

         ¶27 Defendant moved to arrest judgment on the basis of the inherent improbability and apparent falsity of Victim's testimony. In particular, he asserted that Victim's testimony was inconsistent about the frequency and number of times she was abused and that there were no specifics about the time or extent of the abuse. Defendant further contended that the evidence was insufficient to sustain the verdict given Victim's testimony and the lack of physical evidence.

         ¶28 The trial court denied the motion to arrest judgment. It concluded that Victim's testimony was not the only evidence of what occurred. For example, Brother testified that he suspected sexual abuse, and Brother and Victim each testified about the couch incident. The court also concluded that "Victim's testimony as to the frequency, location, and extent of the abuse was not drastically changing, but was consistent in that the abuse occurred." Indeed, "Victim's multiple disclosures were not inconsistent, but merely cumulative, and simply added more details in the later statements." (Quotation simplified.) Further, the court concluded that although there was no physical evidence of abuse, "there [was] testimony that speaks to why that is and additional corroborating evidence of [Defendant's] guilt." Accordingly, the court determined it was precluded from applying the "inherent[ly] improbable testimony theory as there [was] additional evidence supporting the jury's verdict" and could not grant Defendant his requested relief. Defendant appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶29 Defendant raises three main issues on appeal. First, he contends that the trial court committed reversible error when it denied him a bill of particulars. We generally review a trial court's denial of a request for a bill of particulars for an abuse of discretion. State v. Bernards, 2007 UT App 238, ¶ 13, 166 P.3d 626. But we review the trial court's decision regarding the constitutional adequacy of the notice given to a criminal defendant for correctness. See State v. Maese, 2010 UT App 106, ¶ 6, 236 P.3d 155; see also State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991) (explaining that the reviewing court "accord[s] a trial court's conclusions of law no particular deference, reviewing them for correctness," and that "the question of the adequacy of the notice given [to a] defendant is one of law").

         ¶30 Second, Defendant contends that the trial court erred in admitting (1) evidence of his alleged other bad acts and (2) Detective's statements "vouching for the alleged victim's credibility, opining about the weight of the evidence, and assessing the innocence of the defendant." "We afford district courts a great deal of discretion in determining whether to admit or exclude evidence and will not overturn an evidentiary ruling absent an abuse of discretion." State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 (quotation simplified). A trial court abuses its discretion "if its decision to admit or exclude evidence is beyond the limits of reasonability." Id. (quotation simplified). Where Defendant failed to preserve certain evidentiary issues for appeal, however, see infra ¶ 60 n.12, he seeks our review under the plain error exception to the preservation rule, see State v. Bond, 2015 UT 88, ¶ 46, 361 P.3d 104 (listing the plain error doctrine as an exception to the preservation rule). Under the plain error standard, the appellant must show the existence of an obvious and harmful error. State v. Cox, 2007 UT App 317, ¶ 10, 169 P.3d 806.

         ¶31 Last, Defendant contends that the trial court erred in denying his motion to arrest judgment. A trial court "may arrest a jury verdict when the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable as to an element of the crime that reasonable minds must have entertained a reasonable doubt as to that element." State v. Black, 2015 UT App 30, ¶ 12, 344 P.3d 644 (quotation simplified). We review the trial court's ruling on a motion to arrest judgment for correctness. Id.

         ANALYSIS

         I. Bill ...


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