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State v. Cegers

Court of Appeals of Utah

April 4, 2019

State of Utah, Appellee,
v.
Antonio Dewayne Cegers, Appellant.

          Third District Court, Salt Lake Department The Honorable James T. Blanch No. 161900207

          Nathalie S. Skibine, Lisa J. Remal, and Tawni Hanseen Bugden, Attorneys for Appellant

          Sean D. Reyes and Jeffrey D. Mann, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

          OPINION

          HAGEN, JUDGE

         ¶1 Antonio Dewayne Cegers was convicted of sexually abusing his girlfriend's daughter (M.F.) and one of M.F.'s friends (S.B.). He now appeals his convictions for one count of aggravated sexual abuse of a child, one count of sexual abuse of a child, and one count of forcible sexual abuse.

         ¶2 Cegers raises four issues that we reach on appeal. First, Cegers argues that the district court erred when it allowed the State to admit testimony from M.F.'s high school counselor that bolstered M.F.'s credibility. At trial, M.F.'s counselor testified that she did not believe that M.F. fabricated the allegations against Cegers to receive a school scholarship. Because this testimony offered an opinion as to M.F.'s truthfulness on a particular occasion, it constituted impermissible bolstering. Although Cegers did not raise a bolstering objection, we address the issue on appeal because Cegers has successfully argued that the plain error exception to the preservation rule applies. We conclude that the admission of the counselor's testimony, combined with the district court's subsequent instruction directing the jury to consider the counselor's opinion, amounted to plain error. And because the State introduced no evidence of Cegers's guilt apart from the alleged victims' testimony, Cegers was prejudiced by the impermissible bolstering. Accordingly, we must vacate Cegers's convictions and remand to the district court for a new trial.

         ¶3 Although we vacate his convictions based on impermissible bolstering, we address three other issues Cegers raises on appeal that may be relevant on remand. With respect to his challenge to the sufficiency of the evidence, we conclude that the victims' testimony was not so inherently improbable that it could not sustain his convictions and affirm the district court's denial of his motion for a directed verdict. We also conclude that the jury instructions did not misstate the law or mislead the jury with respect to the intent elements of sexual abuse of a child and forcible sexual abuse. Finally, the district did not err in declining to review M.F.'s medical records in camera because Cegers did not make a threshold showing that the records related to the kind of condition contemplated by rule 506(d)(1) of the Utah Rules of Evidence. Accordingly, we affirm the district court's rulings on these issues.

          BACKGROUND[1]

         ¶4 In June 2011, S.B. disclosed to her brother, mother, and a friend that Cegers had molested her while she was sleeping over with M.F. S.B.'s mother reported Cegers to the police. Shortly thereafter, the police met and spoke with M.F., the daughter of Cegers's girlfriend. M.F. told the police that she was not aware that anything had happened to S.B. while she was at M.F.'s home and that she herself had never been sexually abused by Cegers.

         ¶5 Roughly four years later, Cegers and M.F.'s mother separated. After M.F. and her mother moved out of Cegers's home following a domestic violence disturbance, M.F. told her mother that Cegers had been sexually abusing her since she was five years old. The next day, M.F. also confided in her school counselor that Cegers had sexually abused her throughout her childhood. After M.F. disclosed the abuse to her counselor, the counselor contacted the police.

         ¶6 Upon receiving M.F.'s report of abuse, the State charged Cegers with six counts of aggravated sexual abuse of a child, see Utah Code Ann. § 76-5-404.1(4) (LexisNexis Supp. 2018), [2]relating to both S.B. and M.F., and two counts of forcible sexual abuse, see id. § 76-5-404, relating to M.F.

         ¶7 Before trial, Cegers filed a motion to sever the charges relating to M.F. and S.B. and a motion to allow Cegers to subpoena M.F.'s medical and school records. The district court denied the motion to sever, concluding that the charges relating to S.B. were properly joined with the charges relating to M.F. and that the joinder did not prejudice Cegers. The district court also denied Cegers's motion to subpoena M.F.'s medical, counseling, and school records under rule 506(d)(1) of the Utah Rules of Evidence. Regarding the medical records, which included counseling records dating back to 1997 and counseling records from some of the hospitals[3] that provided care for M.F. after a suicide attempt in 2013, the court concluded that Cegers had not shown that M.F. suffered from a relevant emotional condition as required by rule 506(d)(1) and that he had not shown with reasonable certainty that the records contained exculpatory evidence. Regarding M.F.'s school records, the district court denied Cegers's request because the defense had failed to "lay out what the standards of the expectations of privacy are with respect to those records."

         ¶8 Additionally, prior to presentation of the State's evidence at trial, Cegers objected to the "intent requirements" in the element jury instructions for sexual abuse of a child and forcible sexual abuse. Specifically, Cegers objected to the instructions' inclusion of "knowingly" and "recklessly" as possible mental states with which Cegers could have committed the touching elements of both offenses, arguing that sexual abuse of a child and forcible sexual abuse are "specific intent crime[s]." The district court overruled Cegers's objection, emphasizing that the Model Utah Jury Instruction after which the instructions were patterned accurately stated that "it is the more general mens rea that applies with respect to the touching."

         ¶9 At trial, the State introduced testimony from S.B., M.F., M.F.'s counselor, S.B.'s mother, S.B.'s brother, a friend of S.B., and M.F.'s mother. S.B. testified that M.F. was her "best friend" until part way through junior high school and that she spent a considerable amount of time at the home that Cegers shared with M.F.'s mother, M.F., and Cegers's other children. She testified that she remained friends with M.F. until Cegers made her feel too uncomfortable to return to their home.

         ¶10 S.B. described several incidents where Cegers touched her sexually. According to her testimony, Cegers would wait until she was alone with him and touch her breasts and groin area over and under her clothing. She said these incidents took place in Cegers's home in the living room while she was sleeping or lying on the couch or floor and in the kitchen washing dishes.

         ¶11 M.F. testified that she was not aware that Cegers had abused S.B. Although she remembered the police speaking with her about S.B.'s allegations, according to M.F., neither the police nor Cegers ever provided her with specific details. But M.F. testified extensively about her own sexual abuse by Cegers, stating that Cegers began touching her sexually when she was five years old and that the abuse continued into her teenage years. According to M.F., Cegers repeatedly rubbed her vagina over her clothes with his feet and hands, brushed his hands underneath her breasts, and pressed his erect penis against her. M.F. also described incidents where, while she was sitting on the couch in Cegers's living room, Cegers rubbed her vagina over her clothes.

         ¶12 M.F. did not disclose Cegers's conduct to anyone until she was eighteen years old. According to M.F., Cegers's relationship with her mother and the other children in the home was tense. M.F. felt that Cegers treated her as his "favorite" when she was younger, but he would swear at, hit, and ground his biological children. In addition, M.F.'s mother was financially unstable. M.F. testified that, as a result, she felt her family would suffer if she reported Cegers's abuse. M.F. only disclosed Cegers's abuse to her mother during her senior year of high school. After an altercation involving M.F., her mother, and Cegers that resulted in M.F. and her mother moving out of their shared home, M.F. admitted to her mother that Cegers had been abusing her since she was a young child.

         ¶13 M.F.'s high school counselor testified that M.F. also disclosed the sexual abuse to her the day after M.F. reported the abuse to her mother. The counselor testified that she had met with M.F. periodically following M.F.'s attempted suicide years prior and continuing through M.F.'s senior year. During this time, they spoke about M.F.'s discomfort at home, her anxiety, and her academic plans. According to the counselor's testimony, because she had been meeting with M.F. for some time, M.F.'s disclosure came as a surprise to her. The counselor immediately reported the allegations to the police. The police came to the school and interviewed M.F. in the counselor's office.

         ¶14 Around this same time, M.F. applied for a scholarship offered to students who had overcome substantial challenges. In the scholarship application, M.F. included information about Cegers's abuse. When the State asked whether M.F.'s counselor believed that M.F. fabricated her allegations against Cegers to qualify for a scholarship, her counselor responded that the suggestion was "the most absurd thing [she had] ever heard of. There is--there is no way [she] would ever conceive that that would be possible." Cegers objected to this testimony, arguing that the counselor was "speculating about what's in somebody else's mind." The district court overruled Cegers's objection. The counselor explained that she had not spoken with M.F. about the scholarship any more than she had with other students, and she was not sure when, in relation to M.F.'s reports of abuse, M.F. had applied for the scholarship.[4] After the State concluded the counselor's direct examination and without prompting from defense counsel or the prosecutor, the district court gave the following instruction to the jury:

[W]ith respect to the question about the witness'[s] view about whether [M.F.] would have been fabricating in order to get a scholarship. I overruled the objection that was made, which was that a witness can't testify about what's in another person's mind, and that is correct. The witness can't testify about what's in someone else's mind.
So you are to consider her testimony in that regard only to the extent that she was expressing her opinion based on the period of time that she knew the witness and the overall facts and circumstances, but not because she has the ability to know what another person is thinking.

         ¶15 After S.B., M.F., and the school counselor testified, the State presented testimony from S.B.'s mother, S.B.'s brother, and a friend of S.B., and M.F.'s mother. None of the subsequent witnesses testified that they had witnessed or suspected any sexually abusive behavior by Cegers against the victims. At the conclusion of the State's case in chief, Cegers made a motion for a directed verdict, which the district court denied. Cegers then testified in his own defense and denied ever touching the victims in a sexually inappropriate manner.

         ¶16 The jury convicted Cegers of one count of aggravated sexual abuse of a child relating to M.F., one count of sexual abuse of a child relating to S.B., and one count of forcible sexual abuse relating to M.F. Cegers appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶17 Cegers contends that the district court erred by allowing the State to admit testimony from the school counselor that impermissibly bolstered M.F.'s credibility. If preserved, we review the district court's admission of testimony for an abuse of discretion. State v. Iorg, 801 P.2d 938, 939 (Utah Ct. App. 1990). But if a party fails "to raise a timely and specific objection" to the district court's evidentiary ruling, the defendant must show that an exception to the preservation rule applies. State v. Johnson, 2017 UT 76, ¶¶ 18-19, 416 P.3d 443. Cegers argues that, if the issue on appeal was not preserved below, the plain error exception applies. "Under the plain error doctrine, we will reverse the trial court's ruling only if (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the defendant." State v. Diaz-Arevalo, 2008 UT App 219, ¶ 8, 189 P.3d 85.

         ¶18 Because we conclude that Cegers is entitled to a new trial based on this evidentiary error, we must next decide whether Cegers is subject to retrial. We review the district court's denial of Cegers's motion for a directed verdict because, if the evidence at trial was insufficient to sustain his convictions, double jeopardy may bar retrial. See Burks v. United States, 437 U.S. 1, 17 (1978) (stating that "the purposes of the [Double Jeopardy] Clause would be negated" were the government to be afforded "an opportunity for the proverbial 'second bite at the apple'" after presenting insufficient evidence in the first instance); see also State v. Lamorie, 610 P.2d 342, 347 (Utah 1980) ("Reversal and remand for a new trial does not place the accused in double jeopardy where the error giving rise to the reversal is merely trial error, as distinguished from insufficiency of the evidence."). "We review a trial court's ruling on a motion for directed verdict for correctness." State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168. "We will uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation simplified).

         ¶19 We also reach two additional issues that are likely to resurface on remand. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d 1132 (noting that "we retain the authority to reach issues when we believe our analysis could prove helpful on remand").[5] Cegers contends that the district court erred by "improperly" instructing the jury as to the intent element of the aggravated sexual abuse of a child, sexual abuse of a child, and forcible sexual abuse charges. A claim that the district court provided an erroneous jury instruction presents a question of law that is reviewed for correctness, "without deference to the trial court." State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d 1250.

         ¶20 Finally, Cegers contends that the district court erred by denying his request for in camera review of M.F.'s medical records. "Whether a trial court errs in denying a motion for access to a victim's mental health records is a question of privilege." State v. J.A.L., 2011 UT 27, ¶ 21, 262 P.3d 1. A district court's determination regarding the existence of a privilege or an exception to that privilege also presents a question of law that we review for correctness. Id.

         ANALYSIS

         I. The Counselor's Testimony

         ¶21 Cegers argues that the district court improperly admitted testimony from M.F.'s high school counselor that impermissibly bolstered M.F.'s allegations in violation of rule 608(a) of the Utah Rules of Evidence. Cegers failed to properly raise this issue in the district court. "A proper objection puts the judge on notice of the asserted error and allows the opportunity for correction at that time in the course of the proceeding." State v. Dean, 2004 UT 63, ¶ 13, 95 P.3d 276 (quotation simplified). Here, Cegers objected to the counselor's trial testimony because the counselor "was speculating about what's in somebody else's mind." After overruling the objection and permitting the counselor to continue testifying, the district court instructed the jury that it could not credit the counselor's testimony as though "she has the ability to know what another person is thinking." Neither Cegers's objection to nor the district court's instruction about the counselor's testimony invoked rule 608(a) or mentioned bolstering, indicating that Cegers failed to adequately communicate the basis for his objection. Cegers's objection did not put the district court on notice and consequently failed to ...


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