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State v. Bell

Court of Appeals of Utah

December 20, 2018

State of Utah, Appellee,
Calvin Roger Bell, Appellant.

          Third District Court, Salt Lake Department The Honorable Richard D. McKelvie No. 141905701

          Herschel Bullen, Attorney for Appellant

          Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby [1] concurred.


          HARRIS, Judge

         ¶1 A jury convicted Calvin Roger Bell of sexually abusing his girlfriend's three-year-old child (Child). Bell appeals his conviction, asserting that the trial court made two erroneous evidentiary rulings that altered the outcome of his trial. We are unpersuaded by Bell's arguments, and affirm his convictions.

         ¶2 In the summer of 2013, while her mother (Mother) was in a residential drug treatment program, Child disclosed to a staff member there that "her dad" had been "playing sexy" with her. Child was four years old when she made this disclosure. Child had had little contact with her biological father, and the man she referred to as "her dad" was Bell, Mother's live-in boyfriend. Shortly thereafter, Mother arranged for Child Protective Services (CPS) to interview Child. However, Child initially refused to talk to the detective (Detective) assigned to interview her "because he was a boy." Mother later arranged for Child to receive counseling, specifically counseling for sexual abuse and trauma.

         ¶3 In January 2014, Child disclosed to Mother that Bell had once shown her a pornographic video. At that point, Mother asked CPS to interview Child again, and this time Child agreed to speak to Detective. Child described, in detail, the pornographic video that she said Bell showed her. Child also told Detective that "Dad played sexy with me, and I don't like it." Specifically, Child described two incidents, one in which she claimed that Bell put his "weenie" on her "no-no" where "pee" comes out, and another in which she claimed that Bell "pulled down [her] pants" and put his finger "under [her] bum."

         ¶4 After interviewing Child, Detective interviewed Bell, who confirmed that he lived with Mother and Child around the time of the alleged abuse. Bell told Detective that Child called him "Daddy" and that he was the "father figure" in the house. He also admitted to having pornography on his phone and his laptop, and told Detective that he and Mother had created pornographic videos of themselves and that Child had "busted" him and Mother "having sex a couple of times." But Bell denied ever purposefully showing pornography to Child and vehemently denied her other allegations of sexual abuse.

         ¶5 Based on Child's statements, the State charged Bell with one count of rape of a child, a first-degree felony; one count of aggravated sexual abuse of a child, a first-degree felony; and one count of dealing in materials harmful to a minor by an adult, a third-degree felony.

         ¶6 Prior to trial, Bell filed a motion seeking production of Child's therapy records. Bell noted that Child had undergone therapy between the time of her first meeting with Detective (when she refused to speak with him) and her second meeting with Detective (when she agreed to be interviewed and identified Bell as her abuser), and argued that Child must have been coached during therapy. The State opposed the motion, arguing that Bell had not met his burden of showing that the records were reasonably certain to contain exculpatory information. The trial court denied Bell's motion, stating that his argument "amounts to no more than speculation."

         ¶7 Also prior to trial, the State filed a notice of its intent to introduce the video recording of Child's interview with Detective, pursuant to rule 15.5 of the Utah Rules of Criminal Procedure.[2] Bell objected, arguing that the State had not met the requirements of rule 15.5, and asserting that introduction of the recording would violate his Sixth Amendment right to confront witnesses. After a hearing, the court ruled that the recording complied with rule 15.5, and that confrontation was not an issue so long as Child was available to be cross-examined at trial.

         ¶8 At trial, as its first witness, the State called Child to testify in person. Child identified Bell and testified that Bell had lived with her and Mother and that she had called him "Daddy." Child described how Bell had shown her a pornographic video, describing the video in similar detail as she had in her interview with Detective. Child then stated that after the video, Bell "took off his clothes, and then . . . he went up and down on me." Child also described an incident with Bell where "I was on his lap. He put his finger like under my butt, and then, like, did his finger like this," making a hooking or beckoning motion. After the State's direct examination of Child, Bell was able to cross-examine Child without limitation from the court.

         ¶9 The State called Detective as its final witness. Detective testified that, at their first meeting in the summer of 2013, Child did not want to talk to him, so he did not interview her that day, but that at their second meeting, in January 2014, she was willing to talk. Detective described this second interview, and the State asked the court for permission to play the video recording of the interview. Bell renewed his previous objection to the recording's admission, but did not make any ...

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