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State v. Hatch

Court of Appeals of Utah

December 12, 2019

State of Utah, Appellee,
Chad Michael Hatch, Appellant.

          Eighth District Court, Vernal Department The Honorable Edwin T. Peterson The Honorable Clark A. McClellan No. 151800761

          Herschel Bullen, Attorney for Appellant

          Sean D. Reyes and Marian Decker, Attorneys for Appellee

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

          ORME, JUDGE.

         ¶1 Chad Michael Hatch appeals his convictions for one count of aggravated sexual abuse of a child, two counts of sodomy on a child, and one count of attempted aggravated sexual abuse of a child, all first degree felonies. He argues that various instances of ineffective assistance of counsel and trial court error entitle him to reversal and a new trial. We affirm.


         The Abuse

         ¶2 In 2007, when Hatch's stepdaughter (Victim) was approximately seven years old, Hatch drove her out of town and pulled over in a deserted area. Victim testified that Hatch claimed he "just wanted to spend time with [her]" and "show [her] something that his friend and daughter did." Hatch then told Victim to "take off [her] clothes," which she did, and he proceeded to "lick[] and touch[] [Victim's] vagina." This lasted for "more than a minute" until Victim's mother (Mother) texted Hatch that dinner was ready. Hatch told Victim to get dressed and "not to tell anyone" about what had happened, and they returned home.

         ¶3 A while later, when Victim was "[a]round the same age" and while Hatch was home alone with Victim, he asked her "to return the favor." Hatch then "pulled down his pants" and told Victim to "lick his penis," which she did "[b]ecause [she] didn't want him to get mad."

         ¶4 On another occasion, when Victim was still around the same age, Hatch told Victim's brother (Brother) "to go clean up dog poop" outside, and as Brother left, Hatch locked the door behind him. Hatch then took Victim to his bedroom, put on a pornographic movie showing "a naked woman and man . . . have sex" and told Victim to get undressed, which she did.[2] Hatch then laid on the bed next to Victim until Brother, who had finished his poop-scooping task, began knocking loudly on the door. Hearing Brother, Hatch stopped the pornographic movie and told Victim "to get dressed."

         ¶5 While cleaning up after the dog was "one of the chores that [Brother] had to do," he specifically remembered this occasion and that it happened sometime "between 2007 [and] 2008." He remembered it so clearly because, when he had finished, he went "to open the door, and the door was locked," which was not typical. He "knocked on the door and nobody came, so [he] started slamming on the door and . . . screaming." As he "was a little kid," it "frustrated" him. He "started crying because [he] didn't know what to do." After "knocking and banging on the door," "[i]t took a while" until Hatch let Brother back into the house.

         ¶6 Victim also testified that a few years later, when she was around 11 or 12 years old, she was alone with Hatch in his bedroom, and Hatch showed her a shoebox full of pornographic magazines. While they were looking at the magazines, Hatch told Victim that she "could go in the bathroom and pleasure [her]self," which she did not do. Mother, who later learned of this incident, confirmed that it occurred sometime during the "warmer" months of 2011.

         ¶7 When Victim was approximately thirteen years old, she wrote about the abuse by Hatch in her journal and later shared the entries with Brother and Mother, at which point the police were called. Victim had told Mother about the incidents earlier, but Mother "didn't do anything about it because [she] was scared, [she] didn't know what to do, and [she] honestly had not believed [Victim] at the time."[3]

         ¶8 Following a police investigation, the State charged Hatch with aggravated sexual abuse of a child (count 1), sodomy upon a child (count 2), another act of sodomy upon a child (count 3), and attempted aggravated sexual abuse of a child (count 4)-all first degree felonies. The State also charged Hatch with dealing in material harmful to a minor (count 5), a third degree felony.

         Hatch's Claimed Absence From Trial

         ¶9 On the morning trial was to begin, a discussion was held in the trial court's chambers with Hatch's trial counsel and the prosecutor both present but with Hatch absent. During the in-chambers discussion, the following exchange took place:

[Trial counsel]: Let me say one thing that I'm going to do different today than I usually do. Usually when I do a trial, when we come back with the . . . potential jurors, I don't bring my client in. But I am going to this time, and usually I don't like to do it for a strategic reason, but last time we had a trial we all talked about some case law that says that it's reversible error if you don't bring the client in . . . .
[Trial court]: Oh. I am delighted to have your client here. . . .
[Trial counsel]: Well, the only reason I'm saying this is because . . . I don't like to bring my client in, and I have my own reasons for it, but because of my client's personality and because of the case law, I am bringing him in this time. Does that make sense?
[Trial court]: Absolutely. I'm all good with that. As a matter of fact, I noted he wasn't here today and he had an absolute right to be here during the entire proceeding.

         Trial counsel, the court, and the prosecutor then proceeded to discuss prospective evidence, jury instructions, and proposed voir dire questions. Following this discussion, the court took a recess.

         ¶10 After the recess, the court reconvened the proceedings in the courtroom. The jury pool was brought in, and the court proceeded to administer an oath, asked preliminary voir dire questions, and gave the jury pool opening instructions. While the minutes of the day's trial, prepared by the court clerk, indicate that Hatch was present, the trial transcript itself contains no mention of Hatch for the first few minutes of the proceedings in the courtroom. Eventually, however, when the court asked the participants on each side to introduce themselves, trial counsel introduced Hatch to the prospective jurors, and the court greeted Hatch by saying, "Hello, Mr. Hatch. Good morning." Prior to that on-the-record introduction, the court had asked the members of the jury pool to briefly introduce themselves and had asked a few preliminary questions to determine whether the panelists met the statutory qualifications to sit on a jury. Following that on-the-record introduction, the court proceeded with the remainder of the voir dire process. After asking questions of the jury pool in the courtroom, the court allowed individual questioning of prospective jurors in chambers, but the record is clear that Hatch was present during those in-chambers interviews.

         Grandfather's Testimony

         ¶11 By way of a pretrial motion in limine, trial counsel sought to admit "false accusations [that Victim] has made against [Brother] concerning sexual abuse." Specifically, trial counsel argued, quoting State v. Martin, 1999 UT 72, 984 P.2d 975, that nothing in rule 412 of the Utah Rules of Evidence "would exclude evidence of an allege[d] rape victim's previous false allegations of rape [because] [e]vidence of a false accusation would be relevant to [Victim's] credibility." See id. ¶ 16.

         ¶12 In a pretrial hearing, trial counsel alleged that Victim had told Hatch's father (Grandfather)[4] that Brother "inappropriately touched" her, and she was interviewed by the Division of Child and Family Services (DCFS) in connection with this allegation but denied the allegation. Trial counsel argued that the testimony should "be admissible because it goes to the credibility of the accuser" and although rule 412 generally prohibits evidence of a victim's past sexual history, the rule does not prohibit evidence of Victim's allegation and recantation "because . . . it's a false allegation [and] 412 doesn't cover that." Trial counsel also argued that under rule 608(c) of the Utah Rules of Evidence, "any evidence is admissible that shows bias, prejudice, or motive." Trial counsel further alleged that Hatch "was reported and charged because [Grandfather] had turned [Brother] in" and, in response, Brother told the police about Victim's journal entries detailing Hatch's abuse of her. Trial counsel then asked for the court's permission to call as witnesses Grandfather and the DCFS worker who interviewed Victim about Victim's claim of abuse by Brother and her denial of the allegation.

         ¶13 The court declined to rule on the motion at that time, stating that it could not "rule on things that haven't happened yet" and that all trial counsel had produced was "speculative . . . evidence." The court informed trial counsel that it could not foretell "what will or will not be hearsay" but that they could revisit the issue during trial, "outside the presence of the jury."

         ¶14 During opening statements, trial counsel told the jury that Victim had told Grandfather that Brother had sexually abused her. The State objected, and at a sidebar conference, trial counsel insisted that the court "ruled it could come in." The court stated that it "did not" so rule and that it had only "ruled that if [trial counsel] could get that information in" under some rule, then it could come in. The court continued:

I had not ruled whether or not [Grandfather] could testify as to what a witness said, because it is hearsay, and I've already [ruled] that [it is inadmissible hearsay] unless there's an opportunity to present that evidence through an exclusion to the hearsay rule. So, that is inappropriate to present to the jury at this point in time. It's an out of court statement, . . . and you were given the logs from [DCFS] and it shows that [Victim] stated she had never made those statements, and nobody else said she made the statements, with the possible exception of [Grandfather]. That would make his testimony hearsay and inadmissible.

         Trial counsel then argued that it was admissible as a prior inconsistent statement, but the court ruled that he could not mention it in his opening statement, explaining, "If there is an issue of prior inconsistent statement, I certainly haven't heard it yet because I've got no evidence in front of me. I have to hear the evidence."

         ¶15 While cross-examining Victim, trial counsel asked if she had told Grandfather about Brother sexually abusing her. Victim responded that she had not. But Victim did state that she remembered going to the Children's Justice Center where a DCFS worker interviewed her and asked if Brother had touched her inappropriately.[5] Trial counsel did not inquire further into this incident. On redirect, Victim stated that she had "never raised [an] allegation" against Brother.

         ¶16 At the close of the State's case, trial counsel argued that Grandfather should be allowed to testify under rules 613 and 801 of the Utah Rules of Evidence. The ...

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