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State v. Rhodes

Court of Appeals of Utah

August 22, 2019

State of Utah, Appellee,
v.
Richard Drew Rhodes, Appellant.

          Second District Court, Ogden Department The Honorable Joseph Bean No. 151900727

          Emily Adams and Cherise M. Bacalski, Attorneys for Appellant

          Sean D. Reyes and William M. Hains, Attorneys for Appellee

          Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.

          APPLEBY, JUDGE

         ¶1 Richard Drew Rhodes appeals his convictions for one count of aggravated sexual abuse of a child and four counts of sodomy upon a child and raises three issues on appeal. First, he argues the district court erred in excluding evidence under rule 412 of the Utah Rules of Evidence. Second, he argues the court plainly erred in allowing the jury, during its deliberations, to view the victim's (Child) interview at the Children's Justice Center (CJC). Finally, he argues his trial counsel was ineffective for failing to call a helpful defense witness; Rhodes filed a rule 23B motion under the Utah Rules of Appellate Procedure to supplement the record regarding this claim. We deny Rhodes's rule 23B motion and affirm his convictions.

         BACKGROUND

         The Abuse

         ¶2 Child was raised by his grandmother (Grandmother) who had custody of him because his mother (Mother) struggled with drug addiction. Grandmother often worked late and had her daughter (Aunt) look after Child. Child slept at Aunt's house when she took care of him. Three of Aunt's four roommates, including Rhodes, were registered sex offenders. When Child visited Aunt's house, Rhodes helped look after him. Rhodes took Child to the movies, out to eat, and to the arcade. Rhodes bought Child clothes, toys, video games, food, and candy. Rhodes began to hold himself out as Child's father-figure.

         ¶3 Rhodes also became close with Grandmother and she thought of him as a family friend. She did not know Rhodes was a registered sex offender and thought Rhodes was someone she could trust to take care of Child. Rhodes even started calling Grandmother "Mom." After Rhodes cultivated this relationship, Grandmother sometimes asked him to babysit Child when Aunt was unavailable. Child stayed with Aunt or Rhodes a couple of nights a week. When Child stayed at the house Rhodes often had Child sleep with him in the same bed.

         ¶4 The other roommates noticed that Rhodes was possessive of Child and spent all of his time with Child when Child came over to the house. The roommates saw Rhodes "cuddle" Child on the couch and "spoon while [they] were watching a movie, or lay in the bed together." When Rhodes had Child in his bedroom, he would often shut the door. While in the bedroom together Rhodes showed Child pornography. Rhodes also performed oral sex on Child and made Child perform oral sex on him. Child remembered this happening more than fifteen times throughout the years he spent at the house.

         ¶5 At some point, Grandmother learned that Rhodes was a registered sex offender and called Aunt. Rhodes went to Grandmother's house and told her he thought she knew about it. Rhodes told her that when he was eighteen, he had a boyfriend who was sixteen or seventeen and when his boyfriend's parents found out about the relationship, they "turned [Rhodes] in." Grandmother believed this story and continued to allow Child to go to the house. But what Rhodes told her was untrue and Grandmother testified that if she had known the "real story" she would not have permitted Child return to the home. What Rhodes did not tell Grandmother was that he was convicted for sexually abusing a ten-year-old girl when he was seventeen. He also did not disclose that he was convicted for sexually abusing a thirteen-year-old boy a few years later. He was initially placed on probation, but he violated it and was sent to prison. Shortly after he was released from prison, he moved into the house with Aunt and began interacting with and abusing Child.

         ¶6 One day in 2013, Child was playing video games at the house and Rhodes walked in and told him it was time for bed. Rhodes set up a "pull-out couch" and told Child to come sleep with him and "spoon[ed]" Child. Child's great-aunt (Great-aunt) came upon Rhodes and Child, and the way the two were positioned made her feel uncomfortable. Great-aunt took Child away from Rhodes and put him in Aunt's room. Rhodes went to Aunt's room and asked why he was not allowed to sleep with Child. Aunt told him she "didn't think it was right the way [Rhodes] was . . . holding him in the bed." The next morning Great-aunt called Grandmother because she was worried about this incident. Grandmother came to pick up Child and he "jumped into the backseat [of Grandmother's car and] locked all the doors." On the ride home Grandmother asked Child if something was wrong. Grandmother told Child that "if anybody does or says anything to make [him] feel uncomfortable," he could tell her about it. Child asked, "Even if it means they are going to go to prison?" Grandmother said yes and asked him again if anyone made him feel uncomfortable. Child thought for a minute, then said "no."

         ¶7 At the time Child was seeing a therapist for abandonment issues with Mother. Child had an appointment a few days after the spooning incident and Grandmother let the therapist know she was concerned that Rhodes was sexually abusing Child. The therapist told Grandmother to report the abuse to the police and the two came up with a safety plan for Child.

         ¶8 Several days later, a neighbor found Child naked with her eleven-year-old son. Child had suggested that the two play a "game big people" play. Child told his friend they needed to remove their clothes to play, which they did, and then they touched each other's penis and anus. The incident was reported to Child's therapist and the Division of Child and Family Services (DCFS) got involved.[1] The DCFS report described the incident with the neighborhood friend and also mentioned that an adult male had been taking Child to movies and providing Child with gifts. It stated that the man was a family friend and that Child had not disclosed any sexual abuse by him.

         ¶9 A DCFS investigator spoke to Grandmother and Aunt and learned about Rhodes's relationship with Child. They disclosed the spooning incident with Rhodes and the incident with the neighborhood friend. DCFS arranged for Child to be interviewed at the CJC. During the interview Child did not disclose any abuse. DCFS closed the investigation because the perpetrator of the alleged abuse remained unknown.

         ¶10 In 2015, Child got a cell phone for Christmas. Mother, who was now living with Child and Grandmother, caught Child looking at pornography on the phone. She asked him where he learned about pornography and he told her Rhodes showed it to him. A couple of months later, Mother observed Child watching pornography again and asked him why. Child responded that he could not "get out of his head what [Rhodes] did to him." Mother asked him what that was and Child responded that Rhodes touched him. He told Mother that Rhodes made him lie down on the bed and that they performed oral sex on each other.

         ¶11 Grandmother learned about Child's disclosure to Mother and asked whether he wanted to talk to the detective he spoke to at the CJC and Child responded that he was "ready to tell." Child met with the detective for a second CJC interview and disclosed that Rhodes made him watch pornography, touched his penis, performed oral sex on him, and made Child perform oral sex on Rhodes.

         The Proceedings

         ¶12 After Child's second CJC interview in 2015, the State charged Rhodes with one count of aggravated sexual abuse of a child and four counts of sodomy upon a child.

         ¶13 Prior to trial Rhodes sought to admit evidence of the incident with the neighborhood boy under an exception to rule 412 of the Utah Rules of Evidence (412 Evidence), which generally prohibits the use of evidence of a victim's other sexual behavior. He argued that the 412 Evidence was admissible under the exception in rule 412(b)(3) because excluding the evidence would violate his constitutional right to present a defense. Specifically, he argued that a significant portion of his defense was that Child was abused by someone other than himself. The State responded by arguing that Rhodes could present this defense through other means without bringing in the 412 Evidence. The district court ruled that the 412 Evidence was inadmissible and that Rhodes was required to do more than show that it would be "helpful" to his defense. It concluded that Rhodes's claims of Child being confused about the identity of his perpetrator were speculative and agreed with the State that Rhodes could present this defense through other means.

         ¶14 During trial, Grandmother testified on direct examination about her reaction to the spooning incident in 2013 and stated that she let his therapist ...


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