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State v. Fredrick

Court of Appeals of Utah

September 19, 2019

State of Utah, Appellee,
v.
Blane Scott Fredrick, Appellant.

          Fifth 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

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judge Michele M. Christiansen Forster concurred. Judge David N. Mortensen concurred, with opinion.

          OPINION

          Ryan M. Harris, Judge.

         ¶1 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 his convictions.

         BACKGROUND[1]

         ¶2 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.

         ¶3 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."

         ¶4 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).

         ¶5 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 years old.

         ¶6 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.

         ¶7 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.

         ¶8 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[2] 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.

         ¶9 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.

         ¶10 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.

         ¶11 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.[3]

         ¶12 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 K.R.

         ¶13 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.

         ¶14 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.

         ¶15 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.

         ISSUES AND STANDARDS OF REVIEW

         ¶16 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 ...


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