District Court, Cedar City Department The Honorable Keith C.
Barnes The Honorable G. Rand Beacham No. 131500581.
Jonathan T. Nish, B. Kent Morgan, and R. Spencer Robinson,
Attorneys for Appellant
D. Reyes and Kris C. Leonard, Attorneys for Appellee
Ryan M. Harris authored this Opinion, in which Judge Michele
M. Christiansen Forster concurred. Judge David N. Mortensen
concurred, with opinion.
M. Harris, Judge.
A jury convicted Blane Scott Fredrick of two counts of
aggravated sexual abuse of a child, and he now appeals,
asserting that the trial court improperly allowed various
items of evidence to be introduced during his trial. We find
no merit in Fredrick's arguments, and therefore affirm
When K.R. was approximately one year old, her parents
determined that they needed to find a long-term day care
option. K.R.'s parents knew and trusted Fredrick and his
wife, as they were neighbors and attended the same church.
Fredrick and his wife were also out of work at the time, and
K.R.'s parents thought the Fredricks could use the extra
money. For these reasons, K.R.'s parents hired Fredrick
and his wife, who provided day care services for K.R. for the
next eight years.
Both Fredrick and his wife shared day care duties, but over
time Fredrick became the primary caregiver for K.R. Before
K.R. was of school age, her mother would drop her off at
Fredrick's house in the morning and pick her up in the
evenings; once K.R. was old enough to attend school,
K.R.'s mother would drop her off at school and Fredrick
would pick her up from school and attend to her until her
mother came to pick her up at Fredrick's house. Over the
years, K.R. came to view Fredrick as a "second father,
" often referring to him as "Daddy Blane."
One evening, when K.R. was nine years old, she reported to
her mother that "Daddy Blane has touched me in my
privates." Her mother, who was training to be a clinical
therapist, instructed K.R. to "go and get her doll"
and demonstrate on the doll how Fredrick had touched her.
K.R. proceeded to "set the doll on her lap" and
"put her arm around the doll and put her hand in between
the doll's legs." K.R. explained that this
"happened quite often, " and that it occurred in
the basement while she and Fredrick watched cartoons
together. The next morning, K.R.'s mother contacted Child
Protective Services (CPS), which scheduled an interview for
K.R. at the Children's Justice Center (CJC Interview).
The CJC Interview occurred a few weeks later, and was
conducted by a police detective (Detective). During the
interview, K.R. told Detective that, while Fredrick was
taking care of her after school, they would go downstairs to
the basement together to watch cartoons. K.R. reported that
she "would sit on [Fredrick's] lap and then he would
put his hand down [her] pants and just play around with [her]
private spot" with his eyes closed. Although this made
her feel "anxious, " "nervous and scared,
" K.R. did not tell Fredrick to stop because she
"didn't really want to hurt his feelings." She
explained that similar touching had occurred every "two
to three weeks" beginning when she was around seven
Two days after his interview with K.R., Detective went to
Fredrick's house, knocked on the door, and introduced
himself to Fredrick. He explained to Fredrick that he wanted
to talk to him about "an important issue"-although
he did not specify what the issue was-and asked him to come
to the police station. Without asking any questions, Fredrick
agreed to do so, and a few minutes later drove himself in his
own vehicle to the station.
After he arrived at the police station, Fredrick was ushered
into a small interview room containing a table and two
chairs; because no one else was in the room at the time,
Fredrick chose which chair he wanted to sit in. Fredrick was
allowed to maintain possession of his personal effects,
including his phone, wallet, and keys, and was not restrained
(e.g., handcuffed) in any way. A few minutes later, Detective
entered the room and sat in the only remaining chair, which
happened to be the one closer to the door. Detective shut the
door behind him, but did not lock it. Detective was dressed
in a police polo shirt and dark pants, rather than a full
police uniform; no sidearm or weapon was readily apparent on
Detective's person, and at no point did Detective display
a gun or weapon.
Detective began the interview by expressly advising Fredrick
that he was "not under arrest" and that he had
certain rights, including the right to "stop answering
questions" at "any time during questioning."
Detective attempted to inform Fredrick of his
Miranda rights, but did
not include the warning that any statements Fredrick might
make could be used against him in court. Fredrick responded
by stating that he "wish[ed] to waive" his rights
so that he could talk with Detective.
After some initial pleasantries and background inquiries,
Detective asked Fredrick about K.R. At first, Fredrick told
Detective that there had been no inappropriate physical
contact, but as the interview progressed Fredrick admitted
"a little bit at a time" that there had been some
touching. First, Fredrick explained that, at K.R.'s
request, he would tickle her back, arms, and stomach while
they watched television. Next, Fredrick stated that, one day
as he was tickling K.R.'s stomach, he realized that he
had "touched the top of her panties." Finally,
Fredrick admitted that while he was tickling K.R.'s
stomach his hand "went under her panties and touched her
vagina." Fredrick maintained that this had occurred only
once, and he denied any other inappropriate touching.
Detective was not convinced by Fredrick's denial of
additional touching, and at the conclusion of the two-hour
interview he informed Fredrick that he was now under arrest.
At that point, Detective took custody of Fredrick's
personal effects and detained him.
The State later charged Fredrick with two first-degree felony
counts of aggravated sexual abuse of a child, with the
aggravator being Fredrick's position of special trust in
relation to K.R. As the case proceeded toward trial, local
law enforcement officials learned that the Utah Attorney
General's Office, in connection with a separate
investigation, had discovered a series of emails and other
online correspondence between Fredrick and another individual
related to previous acts of child molestation and their
shared sexual interest in children. The State subsequently
filed a notice of intent to introduce some of this evidence
(Electronic Evidence) at Fredrick's trial.
Fredrick then filed several motions to exclude evidence.
First, Fredrick objected to the State's attempt to
introduce the CJC Interview at trial. In the objection,
Fredrick argued that the CJC Interview was inadmissible under
both rule 15.5 of the Utah Rules of Criminal Procedure and
rule 807 of the Utah Rules of Evidence. Specifically, he
asserted that admission under rule 15.5 was improper because
the "interview is not reliable and trustworthy" due
to Detective's allegedly inadequate or flawed questioning
and K.R.'s allegedly vague and confusing responses to
some of Detective's questions. At some point during the
first day of trial, the court overruled Fredrick's
objection to admission of the CJC Interview, including his
specific objection regarding reliability under rule 15.5, but
the record submitted to us on appeal does not contain any
transcript of the trial court's ruling.
Second, Fredrick moved to suppress all evidence arising from
his police interview on the ground that he was subjected to
custodial interrogation without proper Miranda
warnings. The trial court denied this motion, determining
that Fredrick was not in custody when he admitted to touching
Third, Fredrick filed a motion in limine to exclude the
Electronic Evidence discovered by the Attorney General,
arguing that the evidence should be excluded pursuant to rule
403 of the Utah Rules of Evidence. Specifically, he asserted
that the Electronic Evidence had "little to no direct
relevance" to the current charges; its "vulgar and
repulsive" nature would "shock a jury and breed an
emotional response where [it would] want to punish"
Fredrick; and "any probative value . . . [was]
substantially and overwhelmingly outweighed by the risk of
unfair prejudice." Fredrick asked the court to exclude
all of the Electronic Evidence, and made no argument that
some of the evidence might be partially admissible through
redactions or limitations. After oral argument, the trial
court partially granted Fredrick's motion by excluding
six pieces of evidence that the State sought to introduce,
but denied Fredrick's motion with regard to fourteen
other pieces of evidence, ruling that this evidence was
admissible under rules 404(b)(2) and 404(c) of the Utah Rules
of Evidence, and that its probative value was not
substantially outweighed by the risk of unfair prejudice.
K.R. turned fourteen just a few weeks prior to Fredrick's
trial. At trial, the court allowed the State to present the
CJC Interview and Fredrick's confession to the jury. In
addition, the State presented seven (of the fourteen
allowable) pieces of Electronic Evidence to the jury, at
least one of which had been admitted solely pursuant to rule
404(c). After hearing this and other evidence, the jury
convicted Fredrick on both counts.
After the verdict, Fredrick filed a motion to arrest judgment
and for a new trial on the ground that the CJC Interview
should not have been played for the jury because K.R. was not
under the age of fourteen at the time of Fredrick's
trial. The trial court denied the motion, and later sentenced
Fredrick to prison terms of fifteen years to life on each of
the counts, with the sentences to run concurrently.
AND STANDARDS OF REVIEW
Fredrick appeals his convictions, and asserts that the trial
court erroneously admitted three categories of evidence.
First, he contends that the trial court erred in admitting
the recorded CJC Interview. "Whether the trial court
correctly admitted the [C]C Interview] into evidence pursuant
to rule 15.5 is a question of law that we ...