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State v. Popp

Court of Appeals of Utah

October 31, 2019

State of Utah, Appellee,
v.
Justin William Popp, Appellant.

          First District Court, Brigham City Department The Honorable Brandon J. Maynard No. 171100138

          Staci A. Visser and Ann M. Taliaferro, Attorneys for Appellant

          Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

          HARRIS, JUDGE.

         ¶1 A jury convicted Justin William Popp of two counts of sodomy upon a child. Popp appeals his convictions, claiming that the trial court erred in several respects, and that his trial counsel provided ineffective assistance. In connection with his ineffective assistance claims, Popp filed a motion, pursuant to rule 23B of the Utah Rules of Appellate Procedure, asking us to remand the case to the trial court for supplementation of the record. For the reasons that follow, we reject Popp's claims that the trial court erred, as well as all of his claims of ineffective assistance that are based on the appellate record. However, we agree with Popp that remand for supplementation of the record is necessary on one of his claims for ineffective assistance, and therefore partially grant his rule 23B motion and remand for the limited purpose of conducting further proceedings on that claim.

         BACKGROUND[1]

         ¶2 In 2007, when F.H. was approximately three years old, her mother (Mother) began dating Popp. Shortly thereafter, Popp and Mother, along with F.H., moved in together. Popp and Mother had a child (B.J.) together in 2008, and eventually married in 2013. A little more than a year later, however, their relationship soured; they separated in January 2015 and finalized their divorce in July 2015.

         ¶3 The divorce proceedings were contentious, and the divorce court eventually entered an order awarding Popp and Mother joint physical custody of both children but, due to Mother's work schedule, awarding Popp the majority of the parent-time and ordering Mother to pay Popp child support. Although Popp is not F.H.'s biological father, neither Mother nor Popp wanted to "split up the kids" at that point, so they worked out an arrangement where the children would continue to reside largely with Popp, and would visit Mother three weekends each month. For about fifteen months, everyone followed this arrangement without major incident. But in September 2016, F.H.-who was twelve years old by then-asked if she could live with Mother and her new husband full-time, and Popp agreed; B.J., however, continued to live with Popp.

         ¶4 About six months later, in March 2017, F.H. witnessed Mother and her husband having sex as she walked by their bedroom door on her way to the bathroom, and became "very, very upset." In an attempt to console F.H., Mother asked her why she was so upset, and F.H. responded by telling Mother that Popp had sexually abused her. Specifically, F.H. recounted an incident, "when she was younger," in which Popp told her that he had a "magic spoon with frosting on it and made her lick it off," but the spoon was actually his penis. The next morning, Mother called the Division of Child and Family Services (DCFS), and scheduled an interview between F.H. and a DCFS investigator (Investigator).

         ¶5 The interview (CJC Interview) was conducted at the Children's Justice Center by Investigator while a detective (Detective) watched from an adjacent observation room. Investigator asked F.H. what she had told Mother about Popp. F.H. explained that when she was "seven or eight," while Mother "was at work," Popp "put frosting on his thing and then he made [her] lick it off." F.H. explained that Popp had "asked [F.H.] if [she] wanted a treat" and when F.H. said yes, Popp blindfolded her and made her "kneel down" and lick "frosting on his penis." Then, after the frosting was gone, Popp "put the frosting back in the fridge," "washed his hands," and removed the blindfold. When Investigator asked F.H. why she believed she was licking Popp's penis, F.H. said that, as she was kneeling down she began to lose her balance, and when she reached out to catch herself she "grabbed onto [Popp's] leg and he didn't have any pants on."

         ¶6 F.H. then described another incident with Popp, which had also occurred when she was seven or eight. This time, Popp asked F.H. "to help him clean some bottles." They proceeded into an unlit bathroom where Popp asked F.H. to "sit on the toilet" and "use [her] mouth to clean the bottles." F.H. then "put [her] mouth on the bottle and . . . lick[ed] it clean." F.H. explained that she "knew it wasn't a bottle because it wasn't hard. . . . It was like squishy and warm." Although F.H. was unsure exactly how many times Popp had asked her to perform these acts, she knew that it had happened "more than once."

         ¶7 After the CJC Interview, Detective attempted to interview Popp. Detective visited Popp's house multiple times, left his business card on Popp's front door, and spoke to Popp on the phone. During their phone conversation, Popp indicated that he would "be willing to come into the police department for an interview" the following day, but that he "needed to get with his attorney first and make sure that was okay." Popp never showed up for the interview, however, and he later told Detective that "his attorney had advised him not to."

         ¶8 After completing its investigation, the State charged Popp with two counts of sodomy on a child, both first-degree felonies. Prior to the preliminary hearing, the State moved to admit the CJC Interview pursuant to rule 15.5 of the Utah Rules of Criminal Procedure. Popp did not object to the State's motion, and the CJC Interview was played at the hearing. After the hearing, during pretrial proceedings, the State again moved to admit the CJC Interview, this time for use at trial. In its motion, the State addressed how each of the rule 15.5(a) factors had been satisfied. Popp filed an objection to the State's motion, but raised only one argument: that admission of the CJC Interview would violate Popp's right to confront his accuser. However, prior to the start of trial, Popp withdrew this objection after learning that F.H. would be present at trial and available for cross-examination about the CJC Interview. As a result, the court declared Popp's objection "moot" "as long as [F.H.] is present."

         ¶9 In October 2017, the trial court ordered both parties to disclose their trial witnesses by December 5, 2017-one month before the scheduled trial date. Each party timely disclosed one expert witness: the State disclosed Investigator, and Popp disclosed an expert who would "testify about the propensity for child witnesses to recall or falsify testimony" and "the proper techniques that need to be used when interviewing child witnesses and whether they were used in this case." Then, on December 29, 2017, Popp's counsel notified the State that he intended to call three additional witnesses at trial: Popp's mother (Grandmother); Popp's close friend (Popp's Friend) who had lived with Popp and the children for a long period of time; and Mother's close friend (Mother's Friend).[2] Trial counsel indicated that these witnesses could "testify to impeach the State's witnesses with regards to how [F.H.] acted during the time frame that she has alleged to have been abused and after," which behavior they observed "did not change . . . in any way shape or form during the time of the alleged abuse." Popp's counsel urged the court to grant a continuance to allow the State time to investigate the proposed witnesses, but the State opposed counsel's request and instead asked the court to preclude the witnesses due to counsel's untimely disclosure.

         ¶10 The day before trial, the court held a telephone conference to discuss the new witnesses and counsel's untimely disclosure. During that conference, the State offered a compromise, proposing that the witnesses be allowed to testify but only as rebuttal witnesses "if the [S]tate addresses or elicit[s] information about" any behavioral changes on the part of F.H. Thus, absent any allegation of behavioral changes, the witnesses would not be allowed to testify. After some initial hesitation, trial counsel agreed to the compromise. At the end of the conference, counsel also notified the State that he would not be calling the disclosed expert to testify.

         ¶11 The morning of trial, before jury selection, the State informed the court that it would be asking Detective "if he was ever able to have an interview or meet with [Popp]." The State explained that the purpose of the question would be "to show that [Detective] was doing his job, he covered his bases and that he did everything he could to, you know, investigate the case," and that the evidence would not be used "to suggest guilt or say [Popp's] trying to hide something." Moreover, the State assured the court that it would not mention Detective's statements in closing. When asked by the court if he had any comment on the matter, Popp's counsel responded, "No."

         ¶12 During trial, the State played a video recording of the CJC Interview and called four witnesses: Mother, Investigator, F.H. and Detective. Mother testified as to how F.H. initially disclosed the abuse to her, and stated that she had never "told F.H. how to testify" regarding the abuse. Investigator testified about F.H.'s CJC Interview. She explained that the interview had been conducted according to national guidelines designed to allow the child interviewee to tell the story "in their own words" without the interviewer "putting any ideas, any suggestions into their head." F.H. then testified that she had watched the CJC Interview and that it was accurate. F.H. also reiterated that Popp had made her lick his penis on two occasions: once when he asked her to "lick off the frosting," and once when he asked her to use her mouth "to clean the bottles." F.H. concluded by stating that no one had told her how to testify.

         ¶13 Finally, Detective testified that he had observed the CJC Interview from an adjacent room. He testified that he had undergone training and considered himself an "expert" in interviewing children because he had been working in the field for nine years and had watched and conducted "hundreds of interviews." Popp's counsel objected to this testimony based on relevancy, but withdrew the objection upon the State's explanation that Detective's "training and experience" would allow him to "comment on whether [Investigator] accurately and correctly followed the guidelines." Detective testified that the guidelines are "highly reliable" and that, based on his observations of the CJC Interview, Investigator had complied with the guidelines "very well."

         ¶14 Detective also testified about his experience investigating sex crimes. He noted that, in his experience, "[i]t's very common" for a child victim to not remember every single instance of sexual abuse, and "[i]n most cases" a child will delay disclosing sexual abuse. Moreover, "it's very rare" for there to be forensic evidence in sex abuse cases, and in cases with a delayed disclosure "[t]here's [a] 90 plus percent chance that there's not going to be any forensic or physical evidence to collect and preserve." As a result, investigations for this type of crime "rely heavily on the interview process."

         ¶15 Detective then explained what measures he had taken to investigate the case. Specifically, he testified that, after he observed the CJC Interview, he unsuccessfully attempted to interview Popp. Detective explained that, after visiting Popp's house multiple times without success, he was finally able to reach Popp by phone and schedule an interview for the following day. However, after Popp failed to attend the scheduled interview, Detective again contacted Popp, and he recounted to the jury that Popp told him that Popp's "attorney had advised him not to interview with [Detective]."

         ¶16 The State then rested its case. The defense called only one witness, Popp, who testified for approximately ten minutes. Popp testified about his relationship with Mother and the children. He explained that F.H. was not his biological child-a fact he believed F.H. was unaware of until she moved in with Mother after the divorce-but he had always treated her as his own. Popp also testified that his divorce from Mother turned bitter, which he attributed to Mother's displeasure with being ordered to pay child support to Popp, and with Popp being awarded the majority of the parent-time with both children. Popp noted that, for fifteen months after the divorce, both children lived with him harmoniously, and that during this time Popp had a "great relationship" with F.H. Together they would participate in fun "family stuff" such as road trips, swimming, and attending work parties. Popp explained that he agreed to let F.H. move in with Mother after she approached him and explained that she was "getting ready to do her girl things and wanted to be with [Mother]." He testified that he never sexually abused F.H., and that her allegations were categorically untrue.

         ¶17 After the close of evidence, counsel and the court discussed the post-evidence jury instructions in a conference outside the presence of the jury. The court told counsel that it would read each proposed instruction out loud to them, and then ask for any objections, and that, absent an objection, the court would assume the instruction was acceptable to both sides. Neither side raised any substantive objection to any jury instruction or to the verdict form.

         ¶18 After receiving instructions from the court and hearing closing argument from counsel, the jury began its deliberation. While deliberating, the jury sent the following written question to the court: "Did [Detective] tell [Popp] why they wanted to interview him?" The court solicited input from both sides as to how to respond. Popp's attorney suggested that the court respond by telling the jury "that they have the evidence, they have to make a decision based on what they heard." The State and the court agreed, and together they determined that "the safest thing to do" would be to refer the jury to three specific instructions indicating that one duty of the jury "is to determine the facts of the case from the evidence received in the trial and not from any other source." After completing its deliberation, the jury found Popp guilty on both counts. The court later sentenced Popp to a prison term of twenty-five years to life on each count, with the sentences to run concurrently.

         ISSUES AND STANDARDS OF REVIEW

         ¶19 Popp now appeals, raising three issues on direct appeal. First, he argues that the jury instructions were improper. Second, he argues that the trial court erroneously admitted the CJC Interview into evidence. Third, he argues that the trial court erred when it allowed the State to introduce evidence of his refusal to submit to a pre-arrest interview with police. Popp acknowledges that he failed to preserve these issues for appellate review, but nevertheless asks us to review them under both the plain error and ineffective assistance of counsel exceptions to our preservation requirement. "Plain error is a question of law reviewed for correctness." State v. Kozlov, 2012 UT App 114, ¶ 28, 276 P.3d 1207 (quotation simplified). Likewise, "when a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

         ¶20 In addition to the issues he raises on direct appeal, Popp has filed a motion, pursuant to rule 23B of the Utah Rules of Appellate Procedure, asking us to remand the case to the trial court in order to supplement the record with evidence to support his claims of ineffective assistance of counsel. "A remand under rule 23B is available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." State v. Jordan, 2018 UT App 187, ¶ 14, 438 P.3d 862 (quotation simplified).

         ANALYSIS

         I. Jury ...


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